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					         New Brunswick Federation of Labour




                  Guide Submission




                         for




                 Independent Review

                        of the

Workplace Health, Safety and Compensation Commission’s
                         System




                                              October 2007
                             Table of Contents

                                                       Page

1.0   Introduction                                        1


2.0   For the Record                                      3

      2.1   NBFL Board Resignations                       4


3.0   Preventing Workplace Accidents and Illnesses        5

      3.1   OHS Administration and Enforcement            6
      3.2   Strengthening Internal Responsibility         9
            a)     JHSC Rights                           10
            b)     Worker Rights                         12
      3.3   Improving the Regulatory Process             15


4.0   Restoring the Balance in Workers’ Compensation     17

      4.1   Entitlement Rules                            18
      4.2   Benefits                                     18
            1)      Wage Loss Benefits                   19
            2)      Waiting Period                       19
            3)      Top-up Benefits                      21
            4)      Minimum Benefits                     22
            5)      Maximum Insurable Earnings           22
            6)      Annuity at Age 65                    23
      4.3   Rehabilitation and Return to Work            23
            1)      Deeming                              23
            2)      Vocational Rehabilitation            24
            3)      Return to Work                       25
            4)      Alternate Employment                 26
      4.4   Case Management                              28
      4.5   Policy Issues                                29
      4.6   Expanded Coverage                            30
      4.7   Redraft of W.C. Act                          32
                        Table of Contents (cont’d)

                                                                    Page

5.0    Appeals System                                                 33

       5.1   Time Limits                                              33
       5.2   Appeal Participants                                      33
       5.3   Decision Time Frames                                     34
       5.4   Interim Benefits                                         34
       5.5   Implementing Decisions                                   35


6.0    WHSCC Structure                                                36
       6.1 Return to NB Occupational Health and Safety Commission     36
       6.2 WHSCC Board of Directors                                   37
       6.3 Appointments/Terms                                         38
       6.4 Government’s Role                                          39
       6.5 Confidentiality And Conflict of Interest                   39


7.0    Improvements Affordable                                        41

       7.1   Unfunded Liability Misrepresented                        41
       7.2   New Revenue Sources                                      43


8.0    Future Reviews                                                 45


9.0    Forging a New Relationship                                     46

       9.1   Expanding Worker OHS and RTW Training                    46


10.0   Conclusion                                                     49


11.0   Summary of Recommendations                                     50


12.0   Appendix A                                                     60
1.0    INTRODUCTION
       The New Brunswick Federation of Labour welcomes the opportunity to present to
the Workplace Health, Safety and Compensation Commission Review Panel labour’s
views on New Brunswick’s workplace health, safety and compensation system.

       This is the first independent review of the province’s health, safety and
compensation system in over a quarter of a century. The last review was undertaken by
the Boudreau Study Committee and completed in 1979. All subsequent reviews have
involved members of the board of directors of the Workplace Health, Safety and
Compensation Commission (WHSCC) and were limited in scope. Needless to say, we
support the current review and are pleased to provide input on behalf of the NBFL’s
34,437 members.

         The NB Federation of Labour is New Brunswick’s largest central labour body
representing 21 different unions, 255 local unions and 7 district labour councils located in
Bathurst, Restigouche, Edmundston, Fredericton, Miramichi, Moncton and Saint John.
Virtually all industrial and public sector unions with members in the province have locals
affiliated to the Federation. Our membership includes unions active in the forestry,
mining, transportation, energy, communications, manufacturing and processing, service
and public sectors: the Communication, Energy and Paperworkers Union (CEP), United
Steelworkers (USW), Canadian Auto Workers (CAW), United Food and Commercial
Workers (UFCW), Bakery, Confectionary and Tobacco Workers and Grain Millers
International Union (BCTGM), Canadian Union of Postal Workers (CUPW),
International Longshoremen’s Association (ILA), Public Service Alliance of Canada
(PSAC), Canadian Union of Public Employees (CUPE), International Association of
Firefighters (IAFF) and the New Brunswick Union of Public and Private Employees
(NBUPPE).

        This wide diversity in membership obligates the NBFL to address issues and
concerns impacting workers in a broad range of workplaces – everything from mines, fish
plants, bakeries and paper mills to hotels, hospitals, nursing homes, warehouses and
government offices.

        Since the founding of the New Brunswick Federation of Labour in 1914, we have
been very active in the areas of workplace health and safety and workers’ compensation.
In fact, the NBFL was represented on the 1917 review committee, which recommended
the province’s first workers’ compensation legislation.             And many subsequent
improvements to the Workers’ Compensation Act have come about because of our efforts
on behalf of all workers, union and non-union alike. Moreover, it is the New Brunswick
Federation of Labour, which successfully lobbied government for this independent public
review of the workplace health, safety and compensation system. In doing so we sought
assurances that the review would be comprehensive and thorough with the opportunity
for public input at regional hearings. Hopefully this is the intent of the Review Panel.



                                                                                     Page 1
      Workers’ compensation, it should be remembered, evolved from an historic
compromise based on the Meredith principles

              no fault insurance,
              collective liability for employers,
              employer responsibility for the costs of workers’ compensation as a cost of
               doing business,
              adjudication and administration by an independent commission,
              prevention of accidents and promotion of safety, and
              a prohibition against legal action by an employee against the employer.

        The primary purpose of compensation laws, however, is to help workers injured
on the job. Workers gave up a very fundamental right – the right to sue – in exchange for
a workers’ compensation system founded on fairness, respect and equitable treatment of
injured workers.

        Workers, not employers, pay the heaviest price for workplace accidents and
illnesses that often are the result of inadequate training, poor employer safety practices,
hazardous equipment, infrequent workplace inspections and weak or poorly enforced
safety laws. For workers injured on the job, the pain, suffering and financial loss is all
too real. For many employers it is little more than a book entry. It is imperative
therefore that our health, safety and compensation laws, programs and services do in fact
effectively protect workers and their families and also, treat injured workers fairly and
with the utmost respect.

       The WHSCC is responsible for the administration of three separate statutes: the
Workplace      Health,     Safety   and     Compensation     Commission    Act,    the
Workers’ Compensation Act and the Occupational Health and Safety Act. Our
submission addresses concerns labour has with each of these Acts, as well as related
regulatory, policy and administrative issues. Recommendations for improvements to the
province’s health, safety and compensation system are included as well.




Page 2
2.0    FOR THE RECORD
        Since the early nineties, workers in New Brunswick and in other Canadian
jurisdictions have witnessed the elimination of the historical balance between worker and
employer interests in workers’ compensation laws. Responding to employer pressures,
governments across Canada dramatically changed the workers’ compensation system in
favour of employers. Nowhere is this more evident than in New Brunswick, which
severely eroded workers’ rights, and benefits under the Workers’ Compensation Act with
the implementation of Bill 55 in 1993.

       The cuts endured by workers were severe, painful and lasting. They included:

              a 3-day waiting period,
              a reduction in benefits from 90% to 80% of net insurable earnings
               (85% after 39 weeks),
              new provisions effectively ending top-up benefits,
              removal of the minimum benefits guarantee for totally disabled workers,
              elimination of the 8% annuity payable at age 65.

       Compounding the hurt for injured workers were other negative legislative and
administrative changes. Bill 55 changed the definition of accident to place a greater onus
on injured workers to prove, beyond a balance of probabilities, that an injury or illness is
work related. It also made cumulative mental stress a non-compensable condition. The
WHSCC, moreover, immediately implemented numerous restrictive policy changes
impacting entitlement to benefits and also adopted more aggressive deeming measures.

       Bill 55 left New Brunswick workers with the country’s worst compensation
system. And notwithstanding partial restoration of some of the 1993 cuts, there still is
NO BALANCE between worker and employer interests. The fact is that the 3-day
waiting period still exists; benefits are still only 85% of net pre-accident earnings, the age
65 annuity is only 5% and, totally disabled claimants are still not guaranteed a minimum
level of benefits. Furthermore, restrictions still exist on salary top-ups and there still
remains a strict “preponderance of evidence” legal test which claimants must meet to
receive benefits.

        Contrary to the Meredith Principles of workers’ compensation, New Brunswick
workers injured while doing their jobs are not being provided with proper protection
against loss of income. Employers, on the other hand, continue to enjoy low premiums
and the advantages of a fully funded compensation system.

      Labour’s efforts to correct this imbalance in the province’s
workers’ compensation system have been largely unsuccessful. For the most part our
submissions to the WHSCC have fallen on deaf ears and on those few occasions where
the Commission board of directors have recommended benefit improvements opposed by
employers, the New Brunswick government refused to enact the necessary legislative
changes.

                                                                                       Page 3
2.1      NBFL Board Resignations

        The Province’s inaction on WHSCC board recommendations favourable to
workers led to the NBFL asking its two nominees to the board of directors to resign in
2003. Having been represented on the board since its inception in 1919, this decision was
not taken lightly. Moreover, it is important that the Review Panel understands the reason
for our withdrawal since it illustrates a very serious problem with the independence of the
WHSCC and indifference towards the health, safety and compensation concerns of
workers on the part of employers and government.

        In 2001 the New Brunswick Government was asked by the WHSCC board of
directors to enact amendments to the Workers’ Compensation Act which would eliminate
the 3-day waiting period for police and firefighters and, remove restrictions relating to the
negotiation of top-up benefits. A positive development for workers, these proposed
changes were opposed by employer organizations and subsequently rejected by
government. And this despite the fact that government had earlier that same year quickly
amended the Act to address employer concerns involving the Joey’s Delivery Court of
Appeal decision and application of the Act to independent contractors.

        Nothing else, we suggest, could better demonstrate that government, encouraged
by the employer community, can and will interfere with WHSCC decision-making and
recommendations to ensure the employer health, safety and compensation agenda is
implemented regardless of the consequences for workers. As might be expected labour is
upset and frustrated at the lack of respect shown workers and their issues by both
government and the WHSCC which, for its part, has failed to address our concerns in a
positive and timely manner.

      It’s time, we submit, to set aside the employer agenda and to act on the needs of
New Brunswick workers. It’s Time To Make It Fair!




Page 4
3.0    PREVENTING WORKPLACE ACCIDENTS AND ILLNESSES
        Workplace injuries and illnesses are a very serious matter. The costs associated
with job accidents and occupational diseases are enormous in human and social terms, as
well as economically. But despite some progress being made in protecting workers on
the job, workplace hazards persist and workers are being injured at an alarming rate.

        The statistics are still disturbing. One in every 21 workers can expect to be
injured at work each year. In 2006, the WHSCC recorded 25,203 workplace accidents.
Of this total 6,026 represented lost time claims. Eight fatalities occurred and claim costs
incurred were a staggering $160 million.

        As alarming as they are, these statistics say nothing about unreported accidents,
near misses or, the pain and suffering of injured workers. Nor do they account for the
indirect costs of workplace accidents and illnesses – absenteeism, increased use of sick
leave, lost production, equipment damage, replacement wages, etc… which, using a
conservative multiplier of 4, totals in excess of $640 million annually.

        The WHSCC and other commissions across Canada closely track provincial
lost-time accident frequency rates - the number of lost-time workplace accidents for
insured employers per estimated 100 full-time employees. New Brunswick’s lost-time
accident frequency rate for 2005 was 1.42, according to statistics provided by both the
Commission and the Association of Workers’ Compensation Boards of Canada
(AWCBC). The national average in 2005 was 2.56.

        While the WHSCC is quick to report on its low accident frequency rate, it never
tells stakeholders and the public about factors which result in New Brunswick’s
workplace accident stats being seriously understated.

        This province is the only jurisdiction in Canada with a 3-day waiting period for
workers’ compensation benefits reinforced by legislative restrictions preventing the
negotiation of top-up income. Not surprisingly, workers often do not bother to report job
injuries but instead opt for sick leave or, group insurance benefits. Consequently,
New Brunswick’s workplace accidents are understated by at least 20 percent for this
reason alone.

       But there are also other reasons to question the accuracy of this province’s
accident statistics. These include our tougher claims adjudication rules, the push by
employers to have injured workers remain on the job performing light duties, the fact
about 21,000 workers employed in workplaces with less than three employees are not
covered by the Workers’ Compensation Act, the difficulty workers face in establishing
occupational disease claims in this province, as well as New Brunswick’s large
underground economy. If all of these factors were properly accounted for, no doubt our
accident frequency rate would be higher than the national average.



                                                                                    Page 5
       Furthermore, despite the fact workplace accidents are seriously underreported in
New Brunswick – something this Review Panel should closely examine and report on -
the “official” statistics still show that there has been no real improvement in the
prevention of lost-time injuries.

        In 1998, lost-time injuries were at a 6-year high of 6,099. For the year 2006 the
total was 6,026. Over the 9-year period cited, the makeup of the province’s economy has
changed dramatically. We have shifted towards a knowledge based economy with a
growth in call centers, retail work, service industry employment and high tech jobs. At
the same time, our traditional resource based economy built around mines, mills and fish
processing, which obviously involve more hazardous work and greater potential for
injuries, has declined appreciably. Yet lost-time job injuries remain virtually unchanged.

         We can and must do better! Labour firmly believes that true progress in the
prevention of workplace injuries and illnesses will benefit both workers and employers.
Workers will avoid the pain and suffering associated with accidents. Employers will gain
through lower assessment rates, reduced operating costs and enhanced production.
However, for this to happen all employers must be made to recognize and fully account
for all the costs of workplace accidents and illnesses and to also understand that investing
in workplace health and safety pays dividends for all concerned.


3.1      OHS Administration and Enforcement

        The mandate of the WHSCC includes promoting an understanding of, acceptance
of, and compliance with New Brunswick’s health and safety laws; but ultimately, it is the
responsibility of the Commission to ensure the right of every worker to a safe and
healthy workplace is respected.       Sadly, the Workplace Health, Safety and
Compensation Commission is failing New Brunswick workers in this regard by
consistently and unwaveringly pursuing a “passive” prevention strategy emphasizing
persuasion and education not enforcement.

       We have long maintained that the WHSCC must adopt a more aggressive
approach to reducing substandard practices and unsafe conditions in New Brunswick
workplaces. The Federation still insists that all employers make safety a core part of their
business and that the WHSCC strictly enforce provincial health and safety laws. Only
then will there be a significant and lasting reduction in workplace injuries and illnesses.

         Approximately 27,000 workplaces and 334,000 workers are covered by the
New Brunswick Occupational Health and Safety Act. In 2006 WHSCC staff carried out
7,104 workplace inspections and wrote 5,960 orders for violations of the Act. These
statistics too, we believe, are grossly understated and likely only represent the tip of the
iceberg when it comes to OHS Act infractions in New Brunswick workplaces.

      Because the Commission has too few compliance staff and focuses largely on
firms with high rates of “reported” accidents and injuries, many of the province’s

Page 6
workplaces are not visited at all and others very rarely. Many violations of the Act and
regulations therefore go unchecked. And more still go unrecorded because they are either
ignored altogether or, not considered serious enough by compliance officers to write an
official order. All too often officers opt to make written suggestions for safety
improvements, which, unlike orders, are not officially recorded with the WHSCC. Since
they are not provided for in the Act, there is also no obligation to provide copies to the
joint committee and to post them at the workplace.

       Again and again our members tell us they have never seen an inspector in their
workplace or, if they do see one, that Commission staff do not take the necessary time to
ensure their employer is fully complying with the duties of employers as outlined in
Section 9 of the Act. For example, no effort is made to determine if employers have
provided all employees with the necessary health and safety training and awareness of
workplace hazards.

        Membership feedback received by the Federation indicates that only a small
percentage of unionized workers receive adequate health and safety training. The same,
moreover, is true of training for members of joint health and safety committees. In all
likelihood the situation is worse in non-union workplaces and it is important therefore
that the Review Panel examine in more detail the level of compliance with our health and
safety laws by the province’s employers, as well as the measures being taken by the
WHSCC to ensure as much.

        In doing so, the Panel might also want to examine the WHSCC strategy around
focus industries and firms. Despite the very considerable resources allocated by the
Commission to the four focus industries identified because of their high accident
frequencies (nursing homes, sawmills, forestry operations, and fish processing) there has
been no significant improvement in their safety performance record. The WHSCC
recently reported that compare to 2002, the accident frequency rate for the focus
industries only declined by 3% to 8%, with forestry operations actually showing a slight
increase (2%). At the end of 2006 their collective accident frequency rate was
7.86 versus 8.53 in 2002, over double the rate for all industries, and after five years of
special attention and increased visits and inspections. Little wonder that the WHSCC is
reluctant to adopt accident reduction targets.

        Our members who work in these industries indicate that notwithstanding some
improvements in health and safety, job injuries – many of which are not reported – are
still occurring at alarming rates. This, they say, is attributable to weak enforcement of
safety laws, inadequate OHS training, understaffing and excessive workloads,
particularly in the province’s nursing homes.

        This review should also consider the matter of prosecutions under the OHS Act.
Despite our repeated calls for more prosecutions, as well as higher penalties for employer
violations of the Act and regulations little has changed. Here too, the Commission
strategy is to educate and persuade not to enforce and penalize. For the year 2006 only 8
employers were charged, compared to 16 in 2005 and 17 in 2004. The total value of fines

                                                                                   Page 7
levied for these three years was $151,540 or, an average of $50,513 each year. Ironically,
during the same 3-year period 30 workers were killed on the job and 16,799 orders were
written by the Commission for violations of the Occupational Health and Safety Act.

       The WHSCC’s response to widespread non-compliance with the province’s safety
laws on the part of New Brunswick employers has been to adopt a policy on
Occupational Health and Safety Demerits. Policy 24-210 was adopted without
stakeholder consultation and provides that employers receiving a demerit are required to
pay an additional employer assessment when the Commission determines that there has
been non-compliance with the occupation health and safety law.

        In place, since January 2006, this policy is unacceptable to ourselves and will do
little or nothing to curtail violation of the Occupational Health and Safety Act and
Regulations. Application of the policy is far too discretionary and rests with the WHSCC
Accident Review Committee not field compliance staff. Moreover, the Commission will
only “consider” imposing a demerit when an employer is in non-compliance with a
specific unsafe work practice which results in injury or potential for injury, or an
employer is found in non-compliance of the Act or Regulation for the same or a similar
provision on more than one occasion within a 12-months period. And even then the
policy lists an additional eight factors that may allow for the demerit to be waived. Not
surprisingly, the accompanying policy directive states that the preferred method of
enforcement is persuasion.

        The WHSCC’s poor enforcement track record cannot be allowed to continue. We
believe the Commission’s failure to implement effective deterrence policies is nothing
short of shameful. Other jurisdictions like Ontario are far more aggressive when it
comes to prosecutions for OHS violations. So too, is this province’s enforcement of
wildlife laws and public health regulations.

      The New Brunswick Federation of Labour therefore recommends that the
Review Panel call for the WHSCC to become more vigilant and aggressive in the
prosecution of OHS violations.

       The Federation further recommends that the WHSCC be directed to develop
and fully implement a workplace health and safety action plan incorporating

              a substantially larger budget for health and safety activities,
              increased compliance staff,
              an increase in the number and thoroughness of workplace
               inspections,
              more use of stop work orders and an end to the use of written
               suggestions for improvement in place of written orders,
              more prosecutions and higher fines for serious OHS violations with a
               new maximum fine of $500,000,
              better tracking and reporting on workplace safety issues including
               accidents, near misses, training and JHSC activities,

Page 8
               accident reduction targets, including lost-time accidents,
               a more effective protocol for workplace visits by compliance staff,
               stronger enforcement of employer workplace training obligations,
                and
               a penalty based ticketing system for less serious OHS infractions.

        Previously advocated by the Federation, the ticketing system being proposed is
similar to British Columbia’s. It provides for on site tickets or fines to be issued by
compliance staff according to a schedule developed by the WHSCC, as well as media
reporting of safety violations and, impacts on employer assessment rates.

       The advantages of a ticketing system are numerous

           1) it is immediate and avoids expensive and time-consuming prosecutions,
           2) it allows for penalty accumulation depending on the seriousness of the
              violation, length of time violations have occurred and, past compliance
              record of the employer,
           3) control of the system rests with the WHSCC exclusively,
           4) all monetary penalties stay with the WHSCC and may be used for safety
              training or prevention initiatives, and
           5) the system is public, transparent and easily modified.

         In calling for stronger enforcement, as well as greater openness and accountability
in workplace health and safety matters, we encourage the Review Panel to closely
examine developments in the fields of public health and wildlife protection. Earlier this
year a Moncton area resident was sentenced to seven days in jail and a $1,000 fine for the
illegal possession of deer and moose meat in a household freezer (Moncton Times &
Transcript, March 21, 2007). Public health officials, moreover, now close restaurants
failing inspections and post on the internet the name and location of the facilities found to
be below the required regulatory standards. Surely it is not asking too much to expect
similar aggressive enforcement of the province’s safety laws… to attach the same priority
to the protection of the health and safety of workers as is given to fish and wildlife
protection.


3.2    Strengthening Internal Responsibility

        The New Brunswick Federation of Labour has consistently argued that a stronger
approach to enforcement must be complemented by effective workplace health and safety
education, training programs and services to better prevent job accidents and workplace
illnesses. We say this because we are of the view that the best vehicle for addressing
safety issues in the workplace is the Joint Health and Safety Committee supported
by an effective regulatory and compliance system.

       As much as the Federation focuses on the need for a stronger, more effective
compliance system, we still realize that the Commission alone cannot prevent workplace

                                                                                      Page 9
accidents. That is why the New Brunswick Federation of Labour is on record in
supporting an internal responsibility system, including JHSC structures, which
guarantees workers meaningful and equal participation in decisions, which affect
their health, safety and well-being.

        We know through experience, however, that the internal responsibility system and
JHSCs in particular only work effectively where there is willingness on the part of the
employer to make it work and to involve employees and unions as full and equal partners
in the process. This is not presently the case in New Brunswick workplaces.

        The present system assumes a common interest in health and safety. It ignores
the fact that the employer’s interest is in increasing profits while keeping costs low.
Health and safety is not always profitable. Too many employers will voluntarily improve
conditions only when they see that the direct and indirect costs of accidents and illnesses
exceed the costs of preventing them. Seeing financial benefits in investing in accident
prevention is particularly difficult in cases of hazardous substances or processes where
the costs of engineering controls are often large and immediate while the financial cost of
not paying for controls (increased premiums) are years in the future, if ever. Too few
employers look at the human costs of not controlling hazards.

        Equality in OHS decision-making requires that the workplace parties, workers and
employers, have access to and actually do receive effective health and safety training and
that this training is supported by effective legislative rights for both joint occupational
health and safety committees and individual workers.

        In this regard we are pleased that government finally implemented in June of this
year WHSCC recommendations (2002) calling for a 3-day, mandatory training program
for all JHSC members. The NBFL was instrumental in the introduction of this OHS
training initiative and we are confident that this amendment to the OHS Act, if enforced,
will lead to safer, healthier workplaces across the province.

        However, health and safety training still needs to be improved in other ways
including stronger rights for JHSC members and mandatory “prescribed” safety training
for all workers. Sadly, far too many employees, especially younger workers, are not
properly trained when they commence work or, change jobs.

          a)   JHSC Rights

         New Brunswick’s OHS Act provides for the establishment of JHSC’s at any place
of employment where an employer has twenty or more employees regularly employed.
In addition, the legislation describes in detail the rights of committees. However, while
the list of JHSC activities is quite extensive there is no legal obligation to carry out any of
the functions identified since the Act only provides that a committee may perform these
tasks.




Page 10
        This discretionary approach to the role of the JHSCs is a serious weakness in
New Brunswick’s workplace health and safety system and limits the effectiveness of
committees under the internal responsibility system. The right of workers to participate
in the resolution of health and safety issues, we feel, will continue to be compromised
unless JHSCs are given specific duties and functions that the law mandates them to carry
out after receiving the necessary training. Such is the case in many provinces including
British Columbia, Manitoba, Saskatchewan, and Ontario, as well as federally.

        The New Brunswick Federation of Labour therefore recommends that
Section 15 of the OHS Act be changed by replacing the words “A committee may”
with the wording “A committee shall” perform those functions spelled out in the
legislation.

       Because this language is more directive and less open to debate, we believe it will
better enable JHSCs to address workplace health and safety issues in a cooperative
fashion and without involving a WHSCC officer in determining the scope of a
committee’s work.
       Amendments to the OHS Act, Bill 18, proclaimed in June 2007, provide that
workplaces shall now be inspected monthly using an inspection plan developed by the
employer with the JHSC; results of each inspection are to be shared with JHSC members.
Although a welcome improvement, these changes do not go far enough.

        The NBFL also sees the need to strengthen JHSCs by requiring, as in other
jurisdictions, employers to respond in writing to the recommendations of committees.
In New Brunswick employers are presently under no legal obligation to do so. This is a
major concern to our members in that it allows the employer to avoid addressing JHSC
decisions thereby eroding the internal responsibility system and the purpose of
recommendations, which is to have the employer deal with workplace safety issues.

       The NBFL strongly recommends that the Act be amended to require the
employer to respond in writing within 21 days upon receiving written
recommendations from a committee and; that the response shall contain a time
table for implementing the recommendations the employer agrees with and give
reasons why the employer disagrees with any recommendations that the employer
does not accept.

        This provision has been in place in Ontario and elsewhere for some time and
greatly enhances the role of the Joint Health and Safety Committee by ensuring better and
more timely communication between the workplace parties.

       Access to information by JHSCs is another area of concern on the part of
Federation members. Where the employer and/or government opts to withhold relevant
information including reports and tests relating to the workplace’s health and safety, the
JHSC is restricted in carrying out its duties and functions under the Act. This too,
weakens the internal responsibility system.


                                                                                  Page 11
        The NBFL therefore recommends that the Act be amended to require the
employer and/or the WHSCC to provide the JHSC a copy of all relevant health and
safety documents including all OHS tests and reports, as a matter of course. At the
request of the committee, the WHSCC should also be required to send an annual
summary of data relating to the number of fatalities, lost workday cases, workdays
lost, non-fatal cases requiring medical care but no lost workdays and incidences of
occupational illnesses.

       As with other suggested changes, this proposal would serve to improve
communications among the workplace parties on health and safety matters and allow the
JHSC to better perform its functions by having full knowledge of all relevant
information.

        Improved access to information for JHSCs must also include allowing workers the
time to research hazards and assess hazardous substances/processes and, if necessary, the
right to bring in their own technical advisors. In addition, worker representatives should
be entitled to take the time required to prepare for JHSC meetings and to be paid for
same.

      The NBFL further recommends that the Act allow one hour of preparation
time before each meeting or, if necessary, additional time subject to committee
approval.

        Finally, if joint committees are to have credibility in the workplace it is important
that the Act be amended to provide JHSCs with decision-making powers.

       The New Brunswick Federation of Labour therefore recommends that the
OHS Act require the employer to obtain agreement from the JHSC prior to
implementing safety decisions, including safety audit programs, which affect worker
health and safety.

          b)       Worker Rights

        The intent of the internal responsibility system (IRS) is to empower the workplace
parties to work together to identify workplace hazards and to take appropriate action to
prevent accidents and illnesses. Needless to say this necessitates cooperation between
workers and employers in resolving workplace safety issues. It also requires recognition
of and support for the three fundamental rights of workers:

                  the right to participate in workplace health and safety issues,
                  the right to refuse unsafe work, and
                  the right to be informed about workplace hazards.

       Worker participation in the resolving of workplace health and safety issues is
assured in law by the Joint Health and Safety Committee system. Having offered
recommendations intended to enhance the effectiveness of JHSCs, we now turn to an

Page 12
examination of the right to refuse, the right to know and their impact on the role of the
joint committee and the internal responsibility system.

        The right to refuse provides workers a clearly defined right in law which is
intended to ensure a worker is not forced to work in unsafe conditions. JHSCs are
actively involved in the right to refuse process in various ways including the possible
investigation of work refusals under the internal responsibility system. The role of the
joint committee in this regard although relatively clear cut, unfortunately, can be
negatively impacted by unilateral action on the part of the employer. We refer here to the
employer’s right under Section 21(2) of the OHS Act to assign someone else to perform
work that is subject to a work refusal.

        This provision causes us serious concern. It is an issue that is constantly raised by
our members who see it as a means by which some employers subvert the JHSC and
internal responsibility system for the sake of uninterrupted production. This is
unacceptable and changes are needed to ensure the system functions properly and safety
issues are effectively addressed.

       The New Brunswick Federation of Labour therefore recommends that
Section 21(2) be changed to prohibit the employer from assigning another employee
to perform the work of an employee who has exercised the right to refuse unsafe
work until a determination has been made by a compliance officer.

        That the employer cannot presently make such an assignment of work to another
employee until that other worker has been advised by the employer of the initial work
refusal and the reasons therefore and of his/her rights under the Act is not good enough.
The potential for intimidating workers into performing unsafe work is all too real.
Furthermore, these situations seriously erode respect for the joint committee and its work.

       Closely related to the issue of work refusals is the matter of wage protection for
all workers affected by health and safety work stoppages. Presently, the Act says an
employee initiating a work refusal may be reassigned to equivalent work but shall be paid
the same wages and benefits whether or not he/she is reassigned. The legislation makes
no mention of other workers impacted by a work refusal.

       The New Brunswick Federation of Labour therefore recommends that the
Act be changed to provide wage and benefits protection for all workers affected by
health and safety work stoppages under the OHS Act.

       JHSC cooperation and goodwill, we feel, is also jeopardized by the
inappropriate designation of joint committee members. Under Section 14(3) of the
Act the employer and employees are each to designate their respective representatives.
However, this wording is inadequate and can lead to serious differences between the
workplace parties. Other provinces have expanded this part of the Act to avert
troublesome issues such as managerial staff or non-workplace personnel representing


                                                                                     Page 13
workers on the JHSC, as well as the matter of representation in a workplace with
organized and non-organized workers.

          The NBFL recommends that Section 14(3) be broadened to clearly spell out
that

                  in a unionized workplace, the worker JHSC members must be chosen
                   by the trade union(s) representing employees, and
                  worker members must be non-management employees at the
                   workplace who are selected by the workers and who do not exercise
                   managerial functions (the authority to discipline, hire, fire or
                   recommend discipline, hiring or firing.)

       Turning to the right to know, there can be no question but that workers must be
able to identify and understand workplace health and safety concerns if the joint
committee is to successfully fulfill its mandate to ensure a healthy and safe workplace
environment by reducing work-related accidents and deaths. But this means the worker
must be provided sufficient information and training about workplace hazards, safety
procedures and their rights and duties under the OHS Act.

        It is unreasonable to expect workers to determine whether or not a hazard exists or
how to properly protect themselves from hazards unless they receive the proper training
and instructions. The Act makes it abundantly clear that the employer is responsible to
provide the necessary training, supervision and protective equipment to ensure an
employee’s health and safety. If the WHSCC is serious about preventing accidents and
strengthening JHSCs and the internal responsibility system, we believe the Commission
must take concrete measures to ensure workers are in fact properly informed and trained.
A recent national study through Ontario’s Institute for Work and Health revealed only
one in five (20%) of new workers had received safety training. No doubt the situation is
worse in New Brunswick and legislation to correct matters is overdue.

      The New Brunswick Federation of Labour recommends that the OHS Act be
amended to require employers to provide all employees a minimum of 8 hours of
workplace hazard specific training annually, fully paid by the employer.

       The NBFL further recommends that the legal onus on employers be
strengthened by adopting the same training of workers provisions found in
Section 19 of Saskatchewan’s health and safety legislation whereby

          1)       an employer shall ensure that a worker is trained in all matters that
                   are necessary to protect the health and safety of the worker when the
                   worker:

                        a) begins work at a place of employment, or
                        b) is moved from one work activity or worksite to another that
                           differs with respect to hazards, facilities or procedures.

Page 14
       2)     the training required by subsection (1) must include:

                    a) procedures to be taken in the event of a fire or other
                       emergency;
                    b) the location of first aid facilities;
                    c) identification of prohibited or restricted areas;
                    d) precautions to be taken for the protection of the worker from
                       physical, chemical or biological hazards;
                    e) any procedures, plans, policies and programs that the
                       employer is required to develop pursuant to the Act or any
                       regulations made pursuant to the Act that apply to the
                       worker’s work at the place of employment; and
                    f) any other matters that are necessary to ensure the health and
                       safety of the worker while the worker is at work.

       3)     an employer shall ensure that the time spent by a worker in the
              training required by subsection (1) is credited to the worker as time at
              work, and that the worker does not lose pay or other benefits with
              respect to that time.

       4)     an employer shall ensure that no worker is permitted to perform work
              unless the worker:

                     a) has been trained, and has sufficient experience, to perform
                        the work safely and in compliance with the Act and the
                        regulations; or
                     b) is under close and competent supervision.

       Stronger training of workers legal requirements, we feel, will make the job of
JHSCs much easier and, more importantly help reduce workplace accidents and illnesses
with significant benefits to workers, especially younger employees, and employers alike.
Training works, it only remains to make it happen!


3.3    Improving the Regulatory Process

        Since the formation of the former Occupational Health and Safety Commission in
1981, a positive feature of workplace health and safety in New Brunswick has been the
involvement and cooperation of the key stakeholders – the workplace parties, in the
development of OHS rules and regulations. Operating by consensus and working with
NBOHSC/WHSCC staff, employer and union nominees served on regulatory review
committees which recommended to the Commission board of directors changes to
improve the workplace environment in areas relating to safety and health. Everything
from air quality to machine guarding and washroom facilities was periodically examined
with a view to updating New Brunswick’s standards.


                                                                                Page 15
        The New Brunswick Federation of Labour is concerned that this cooperative
approach to regulatory change is being abandoned by the Commission in favour of a
process that sees WHSCC staff review, research and propose directly to the board of
directors appropriate changes in OHS regulations. If so, this is not acceptable and, in the
long run, will be detrimental to the province’s workplace health and safety environment.
More, not less direct input and involvement by the people most impacted by health and
safety rules – workers and employers – is what is needed and should be actively
supported and promoted by the WHSCC.

        Other jurisdictions have standing advisory committees responsible for reviewing
health and safety legislation and offering input on possible changes. Provided they are
properly constituted and their advice is taken seriously by the responsible authority – in
this case, the WHSCC, they can be very useful. Not only will this process help ensure
safety regulations remain up to date but, equally important, it will lead to stronger
workplace support for new OHS initiatives.
        The New Brunswick Federation of Labour therefore recommends that a
provincial OHS Advisory Committee be established by the WHSCC following active
consultation with the labour and employer communities.

        Once set up, this Committee should be directed to commence a comprehensive,
ongoing review of all current regulations and the necessity for new regulations, including
a regulation specifically addressing workplace ergonomics.




Page 16
4.0    RESTORING THE BALANCE IN WORKERS’ COMPENSATION
        Just as workers are frustrated by the failure of the Workplace Health, Safety and
Compensation Commission to bring about the necessary improvements to guarantee the
right of all workers to a safe and healthy workplace so, too, we are very disturbed that
there is still no willingness to address labour’s concerns about inferior
workers’ compensation benefits and services.

        In its 2006 Stakeholder Report the WHSCC is quick to inform workers that “with
the second lowest accident frequency on record, a reduced assessment rate for the second
consecutive year, and a fully funded liability at 111.0%, 2006 was another solid year for
the Workplace Health, Safety and Compensation Commission.” Unfortunately, the
Commission is far less enthusiastic about improved benefits for injured workers. The
same Stakeholder Report, in one short sentence, indicates that payments to injured
workers increased by 4% over 2005 to $127 million in 2006. The Commission neglected
to mention, however, that this increase can largely be accounted for by the legislated
indexation of benefits and maximum weekly earnings, as well as a slight increase from
73.1 to 74 in the average days lost per lost-time claim.

       Workers’ compensation, we reiterate, must return to its original premise that
every worker has the right to full and complete compensation for loss of income resulting
from harm to health caused by work. This requires progressive legislative amendments
and policy changes, along with immediate action on the part of the government and
WHSCC to restore balance and fairness to the province’s workers’ compensation laws,
programs and services.

       Workers are disappointed that the current WHSCC board of directors is not
willing to use its authority to recommend to government meaningful benefit
improvements for injured workers and their families. The board maintains that
balancing the system means keeping employer assessment rates as low as possible,
while providing the best possible benefits for injured workers. Yet victims of workplace
accidents are offered absolutely no hope that benefits will be restored to pre-1993 levels.
Judging by the Commission’s latest 5-year strategy plan (2006-2011) the status quo is the
“best possible benefits” that workers can expect. To put it bluntly, the WHSCC’s view of
balancing the system is UNACCEPTABLE.

        The New Brunswick Federation of Labour believes that full restoration of all
benefits cut in 1993 is not only justified but also, affordable. WHSCC finances are
extremely healthy and the average assessment rate charged this province’s employers
very low. We therefore urge the Review Panel to give positive consideration to the
following recommendations concerning benefits.




                                                                                   Page 17
4.1       Entitlement Rules

        Legislative cuts to the Workers’ Compensation Act enacted in 1993 (Bill 55)
resulted in a much more restrictive definition of what constitutes a work related accident.
Consequently, where there is any evidence to the contrary the claimant must show that
there is a “probable” relationship between the accident and the injury. Prior to this, the
Act called for a “possible” relationship. In addition, other than for claims involving an
acute reaction to a traumatic event, cumulative stress ceased to be a compensable
accident.

        These changes, together with a new “preponderance of evidence” test placed an
unfair burden on injured workers seeking compensation for job related injuries and
illnesses. Because of this greater onus on workers to substantiate their claims, more
claims are being denied and injured workers must resort to launching appeals. Many,
however, simply give up and abandon their claims, especially those involving soft tissue
injuries, industrial diseases and stress.

        Work related stress, it should be noted, is commonplace in workplaces today and
all too real because of understaffing and greater productivity demands on workers by
their employers. To refuse to recognize as much and to deny work related stress claims
for compensation is wrong and not in keeping with the purpose of workers’
compensation.

        Denial of benefits to workers suffering from disabling chronic mental stress
arising out of and in the course of their work, we feel, is every bit as discriminatory as
was the earlier exclusion of chronic pain as a compensable condition. All injured
workers deserve to be treated equally and fairly regardless of the nature of their
workplace injury. Quebec and Saskatchewan have moved to recognize stress claims
where the worker is able to show a relationship between the illness and the work.
New Brunswick, we suggest, should do the same and not limit stress claims to an acute
reaction to a traumatic event.

       The New Brunswick Federation of Labour recommends that the Workers’
Compensation Act be amended to restore the pre-1993 definition of accident and
standard of proof whereby it will be presumed that an accident or illness arose out
of and in the course of employment unless the opposite is proven; to make work
related stress compensable and; to reinforce that the injured worker shall receive
the benefit of the doubt at all times.


4.2       Benefits

       The severity of cuts to the benefits of injured workers brought about by Bill 55
cannot be overstated. Despite partial restoration of some benefit reductions, workers still
continue to lose millions of dollars each year. In fact, we estimate that at least


Page 18
$100 million has been taken out of the pockets of injured workers since 1993. Surely it is
time to correct this injustice.

       1)      Wage Loss Benefits

        Restricting the wage loss benefits of an injured worker to 85% of the workers’
loss of earnings capacity is arbitrary and unfair. There is no justifiable argument for this
amount other than the Commission’s determination to keep benefits below pre-1993
levels. Most jurisdictions outside Atlantic Canada pay 90% of net earnings.

        Wage loss benefits should reflect the total financial losses and other hardships
suffered by injured workers. Reducing benefits below 90% of net on the grounds that the
after tax incomes of workers in receipt of benefits are supposedly not significantly
impacted ignores other important considerations. These include the injured worker’s
possible loss of pension contributions and credits, vacation and E.I. coverage, as well as
childcare and transportation obligations. Nor is there any accounting for the personal
hardship associated with workplace accidents such as pain and suffering and job impacts.

     The New Brunswick Federation of Labour therefore recommends that the
W.C. Act be amended to ensure that wage loss benefits shall be payable in an
amount equal to 90% of the worker’s loss of earnings after the date of the accident.

       2)      Waiting Period

        New Brunswick is one of only three jurisdictions in Canada with a waiting period
for workers’ compensation benefits. Brought in at the request of the employer
community, this 1993 amendment exists solely to lower WHSCC costs at the expense of
injured workers. It is safe to say though that the financial pain is greatest for low-income
workers most of whom can ill-afford to lose three-fifths of their initial weekly wage loss
cheque.

         That the WHSCC board of directors has no plans to remove the three-day waiting
period for benefits is very disturbing and, we feel, demonstrates the board’s insensitivity
to the financial plight of injured workers and their families.

        As in Prince Edward Island and Nova Scotia – the other provinces with a waiting
period, injured workers in New Brunswick are being unfairly forced to work through
injuries or, to file for group insurance or sick leave benefits rather than report lost-time
compensation claims. But at least injured workers in our neighbouring provinces have
the option of trying to negotiate replacement wages through their employers. This is not
the case in New Brunswick making our waiting period even harsher and far more
punitive.

      Without question, this has seriously distorted lost-time accident statistics.
Notwithstanding a decline in reported lost-time accidents, the reality is that our


                                                                                    Page 19
workplaces are not safer. Accidents are still happening but regretfully, are either not
reported or, not shown as lost-time claims.

       A 2001 review of workers’ compensation in Nova Scotia examined this issue at
great length and noted that injured workers, according to WCB estimates, lose an
estimated $308,851 to $1,235,405 per year because of that province’s two-day waiting
period. A separate New Brunswick study estimated that 12% to 20% of all accidents
were not reported owing to the three-day waiting period.

        Labour maintains that workplace accidents are the financial responsibility of
employers not workers. We believe it is time the WHSCC and NB government recognize
as much and require all employers to fulfill their obligation to fairly compensate workers
injured on the job by providing for payment of compensation benefits beginning the day
of the accident.

        As it stands now, some employers are not affected by the waiting period
provisions of the Act resulting in a double standard for this province’s workers. We refer
here to employees of self-insured employers (the NB government and the government of
Canada among others) whose accident wage losses are covered directly by their employer
on a voluntary basis; in addition some unions have negotiated collective agreements
covering payment of the waiting period.

        However, leaving it to individual employers and workplaces to determine if the
waiting period will be removed is wrong. This only promotes gross inequities in the
workers’ compensation system to the point where workers with similar injuries are
treated differently. And this is to say nothing of the adverse consequences of workers not
reporting job accidents contrary to the purpose and intent of our workers’ compensation
laws.

       The NB Federation of Labour is not alone in its thinking on this important issue.
Nova Scotia’s review committee in unanimously recommending elimination of that
province’s waiting period stated

                      “Injured workers see the waiting period as an unfair
              penalty when the accident or illness was not their fault. It
              is contrary to the no-fault principle of public workers’
              compensation. Many workers have ongoing commitments
              they must meet during a waiting period, such as daycare
              costs and monthly parking or transit fees.

                      A key concern…is the impact of the waiting period
              on minimum wage workers who can least afford to be
              penalized for not working. For these workers, the waiting
              period is a definite incentive to continue to work regardless
              of the consequences for their health.”


Page 20
       We could not agree more.

       The New Brunswick Federation of Labour therefore recommends that the
W.C. Act be amended to provide for removal of the waiting period for wage loss
benefits.

        The New Brunswick Federation of Labour further recommends that the
W.C. Act be amended to require the “employer” to compensate an injured worker
at the regular rate of pay for the day of an injury, provided the worker reports the
injury.

        This is the case in five jurisdictions in Canada and in keeping with the
fundamental principle that employers, not injured workers, should ensure the full cost of
workplace accidents. Also, it would ensure all injured workers are treated the same under
the province’s workers’ compensation laws. Such is not the case today since neither
individual employers or the WHSCC are obligated to pay any wages lost the day of an
injury. To the extent some employers cover an injured worker the day of the accident
and others don’t, workers are not treated equally.            Such is the case with
New Brunswicker’s nursing home workers who are employed in a sector with a very high
accident frequency but when injured on the job are docked the balance of that day’s pay,
to say nothing of the 3-day waiting period.
/
        3)     Top-up Benefits

        The Act makes it very clear that any top-up payments received by a worker
pursuant to a collective agreement with an employer are to be deducted from the wage
loss benefits of the injured worker if it means the worker is receiving more than 85% of
his/her pre-accident net earnings.

        This clearly demonstrates the punitive approach of the W.C. Act insofar as worker
rights and benefits are concerned. Restrictions against top-up constitute outright
interference with the free collective bargaining process and the right of workers to freely
negotiate all terms and conditions of employment. The measure in question is unfair to
injured workers and should be removed.

       In 7 jurisdictions, there are no legislative restrictions against employers paying
injured workers top-up benefits or, other collateral benefits. New Brunswick, we feel,
should follow their example.

       The New Brunswick Federation of Labour recommends that the W.C. Act be
amended to remove all restrictions on salary top-ups, and to allow individual
employers and workers to determine the payments, if any, in excess of legislated
benefit levels.

      The New Brunswick Federation of Labour further recommends that the
W.C. Act also be amended to ensure that workers receiving compensation benefits

                                                                                   Page 21
as well as CPP disability benefits, shall not have their workers’ compensation
benefits reduced.

        We object to the current legislation, which allows the WHSCC to deduct that
portion of CPP benefits, which relate to the job injury. Using CPP income to reduce
compensation benefits is contrary to the intent of workers’ compensation and that it be
solely funded by employers through assessments.

          4)   Minimum Benefits

        Only the W.C. Acts in Atlantic Canada have no minimum benefits provisions to
protect workers totally and permanently disabled because of workplace accidents. In
light of the failure of compensation boards in the Atlantic Provinces to address this
matter, it is incumbent upon government to act. The cost of guaranteeing a reasonable
level of minimum benefits is minimal, we understand, and would help ensure those
injured workers affected are not left financially destitute. Forcing these workers onto the
welfare rolls is morally wrong and simply lets employers avoid paying the true costs of
workplace accidents.

      The New Brunswick Federation of Labour recommends that the W.C. Act be
amended to ensure all workers totally disabled beyond two years receive weekly
compensation benefits equal to at least 50% of New Brunswick’s average weekly
earnings.

          5)   Maximum Insurable Earnings

       The W.C. Act (Section 38.1 (1)) requires that the injured worker’s earnings in
excess of the maximum earnings ceiling are not to be considered in calculating
compensable earnings. For 2006 the maximum annual earnings was $51,900. It is
adjusted annually to reflect the percentage increase in the Consumer Price Index.

       New Brunswick has the ninth lowest compensable earnings ceiling in Canada –
only the other Atlantic Provinces trail us. Because of this many NB workers stand to
receive a lesser amount of workers’ compensation benefits if injured on the job. It also
means that NB employers pay less in assessments.

         Effective 2006 the government of Manitoba removed that province’s maximum
compensable earnings ceiling. Of those jurisdictions with ceilings, the highest is the
Yukon at $69,500 and the average ceiling for 2006 was $57,468. The level of coverage
afforded injured NB workers therefore was well below the national average. We believe
this difference in coverage is highly inequitable and must be rectified.

      The New Brunswick Federation of Labour therefore recommends that the
W.C. Act be amended to eliminate any limit on insurable earnings.




Page 22
       6)      Annuity at Age 65

       Applicable to injured workers disabled beyond two years, Section 38.22 of the
W.C. Act requires that the WHSCC set aside an amount equal to 5% of their
compensation benefits which, together with interest, shall be used to provide a pension at
age 65. Prior to Bill 55 the amount set aside was 8%. In the event the worker dies
without dependents, the pension remains with the WHSCC Pension Fund.

         It is important to remember that this pension benefit was created to offset the loss
of lifelong disability awards in 1981. Cutting it to 5% is indefensible and the additional
cost to re-establish the contribution rate at 8% is, we understand less that $300,000 per
year.

       The New Brunswick Federation of Labour recommends that the pension
benefits provided to long term claimants under Section 38.22 of the W.C. Act be
based on 8% of the compensation paid the injured worker; also, that the amount set
aside not be left fully in the Pension Fund but that there be a minimum payout of
5 years to the estate of the worker should he/she die without surviving dependents.


4.3    Rehabilitation and Return to Work

        Workers’ compensation should never reduce an injured worker and the worker’s
family to poverty or make them a charge on society. This is the common conclusion of
countless compensation reviews nationally over the years. But, as a result of DEEMING,
the shift to wage loss based workers’ compensation in place of the former meat chart
system centred around total and partial life long disability pensions has in fact led to the
impoverishment of all too many workers.

        For us, re-establishing the worker in productive and suitable work best benefits
the injured worker in the long run. This means that progressive rehabilitation, retraining
and return to work legislation, programs and services, not deeming, must form the
foundation of our workers’ compensation system.

       1)      Deeming

       The labour movement here and elsewhere in Canada has long opposed the
deeming process. Our position remains unchanged. Failing legislative changes
outlawing deeming, at the end of the day workers will still be deemed fit for phantom
jobs and forced to resort to welfare for survival.

       Reducing the benefits of permanently disabled workers deemed fit for
non-existent jobs is grossly unfair and must be stopped. The W.C. Act should be
changed to eliminate deeming other than in those special circumstances where an injured
worker, without good reason, declines a “bona fide” offer of employment or retraining.


                                                                                     Page 23
Until a real job becomes available that the injured worker can perform safely, we believe
he/she should remain on full compensation benefits.

       Returning the injured worker to meaningful employment is a fairer and more just
way to reduce the costs of paying wage loss benefits. It is beneficial to employers and
the WHSCC while providing injured workers with self-esteem and personal fulfillment.
More importantly, it is what injured workers want most!

        The Federation’s concerns with deeming have been outlined in previous
submissions and won’t be expanded upon here. Suffice it to say that we remain
convinced that of those workers deemed each year, many face a bleak future marked by
poverty, misery and despair. Despite improvements to the WHSCC’s deeming process,
the complaints persist and more often than not confirm that deeming only serves to
further penalize victims of workplace accidents.

       A significant number of deeming decisions continue to be successfully appealed
by injured workers. Attempts to reform the deeming process by adopting better methods
of establishing a “suitable occupation” and greater consistency in the application of
deeming are doomed to failure, however. The deeming process is controversial and will
remain so until the current practice of deeming is discontinued. Administrative
improvements are not the answer. Amendments to the Workers’ Compensation Act are
needed.

       The New Brunswick Federation of Labour therefore recommends that the
W.C. Act be amended to remove the deeming process by deleting in Section 38.1(1)
the words “the earnings the worker is estimated to be capable of earning at a
suitable occupation after sustaining the injury” and substituting the words “the
earnings that the worker is receiving from employment.”

          2)   Vocational Rehabilitation

       The Federation is also concerned that the W.C. Act makes no specific reference to
vocational rehabilitation (Section 43). The WHSCC “may” take such measures, as it may
consider necessary or expedient to get injured workers back to work.

        Although vocational services are offered by the WHSCC as part of the injured
worker’s overall rehabilitation program, it is critical that there be clear legal direction to
the Board in this matter as is the case in other provinces. It cannot, in our view, be left
solely to the Commission to arrive at solutions.

       The New Brunswick Federation of Labour recommends that the W.C. Act
(Section 43) be strengthened to require that the WHSCC “shall” undertake all
necessary measures, including vocational rehabilitation services, to aid in getting
injured workers back to work.




Page 24
       Surely, if the W.C. Act can require the injured worker to cooperate in vocational
and occupational rehabilitation then it is not unreasonable to mandate the WHSCC to
provide all necessary vocational assistance as part of an effective return to work plan.

       3)      Return to Work

        A more positive alternative to deeming is enactment of the necessary measures to
ensure bona fide return to work options are available for injured workers. Therefore it is
imperative that workers be given not only full and comprehensive rehabilitation services
but also, the strongest possible legal right to return to work as soon as they have reached
maximum medical recovery.

        The existing legislative provisions do not go far enough to ensure the right to
return to work. Section 42.1 of the W.C. Act must be strengthened to address current
weaknesses including length of service and early termination of re-employed workers and
the application of the return to work legislative provisions.

        Presently excluded are all employers who regularly employ fewer than
10 workers. An employer’s obligation to re-employ is only for a maximum of two years
after the date of the accident (one year for employers with 10 to 20 workers) and, there is
no duty to accommodate onus placed on employers.

        Given the nature of the New Brunswick economy, these shortcomings in the
application of Section 42.1 leave far too many injured workers with no or, ineffective
return to work protection. This is not acceptable especially when one considers that
many of the workplaces excluded employ workers more at risk to accidents and therefore
in need of better legislated assistance.

       Human rights laws do not deny workers protection on the basis of workplace size,
industry or, length of employment and with good reason. As a minimum the province’s
workers’ compensation legislation should mirror the protection afforded workers through
the Human Rights Act.

        The same rationale, we believe, should apply to prohibit the unfair termination of
workers re-employed under the return to work provisions of the W.C. Act. This requires
offering job protection, which presently is non-existent.

        Finally, it is imperative that in all unionized workplaces the bargaining agent for
the injured worker be fully involved in the return to work process. Neither the legislation
or Board policies currently make sufficient reference to the union’s role which,
considering the latter’s legal obligations under other laws, is a serious shortcoming and
needs to be addressed if return to work programs are to be successful. As is the case in
Newfoundland and Labrador and, also strongly recommended by the National Institute
for Disability Management, we suggest that the W.C. Act provide for joint return to work
committees to facilitate the involvement and cooperation of all the workplace parties.


                                                                                   Page 25
      The New Brunswick Federation of Labour therefore recommends that the
Return To Work provisions of the W.C. Act be strengthened as follows:

               1. The legal obligation to re-employ injured workers (Section 42.1) apply
                  equally to all employers covered by workers’ compensation,
                  regardless of size or, length of service.

               2. Employers be obligated by law to accommodate the injured worker’s
                  medical restrictions including redesigning the job site where
                  appropriate.

               3. There be an onus on employers to provide alternate work if the
                  injured worker cannot return to his or her pre-accident job.

               4. To protect against unilateral accommodation by the employer, which
                  does not respect the interests of the injured worker or the rest of the
                  bargaining unit, including seniority rights, joint return to work
                  committees be legislated at the workplace.

               5. The WHSCC be given the power, reinforced by stronger penalty
                  options, to order employers to re-instate injured workers where
                  employers fail to meet a rigid test of “undue hardship”.

               6. There be special protection against unfair dismissal of re-employed
                  injured workers.

          4)      Alternate Employment

        Re-employment of injured workers benefits all employers by reducing future
collective liability costs. Under the current system, however, employers with good
re-employment programs are penalized since their costs are driven up by employers, who
do not return injured workers to work. Obviously, a more level playing field is required.

        To ensure more employers become proactive in implementing adjustment
measures for the benefit of employees with reduced work capacity, we urge the WHSCC
to strengthen the monetary penalties applicable to companies, which do not comply with
Section 42.1. Pre-accident employers who do not re-employ the injured worker as
required could be assigned the value of the ongoing reduction in benefits arising from the
deeming process. Consequently, the pre-accident employer would have a higher accident
cost experience and would receive a higher assessment rate. We are confident that this
penalty provision, if adopted and, rigidly applied would have the desired effect and result
in more employers re-employing injured workers.

       All monies generated through this levy or premium surcharge should, we believe,
be placed in a special fund dedicated to financing the vocational rehabilitation and
re-employment of workers disabled at the workplace. Subject to any wage subsidization

Page 26
program incorporating appropriate job protection measures, incentives for new employers
to hire injured workers could include

                  The WHSCC absorbing the cost of retraining the worker and making
                   any modifications required in the workplace to enable the worker to
                   function despite his or her physical disabilities;

                  Charging to the second injury fund any costs of compensation arising
                   out of further injury to the worker;

                  Financial assistance in the form of credits or grants.

      The WHSCC itself must also become more proactive in developing alternate
employment options for injured workers who do not return to their pre-injury place of
employment. The current attitude that there is “no obligation” for the WHSCC to find
employment for the worker is short-sighted and must change.

       Assisting injured workers with job market searches isn’t sufficient. Working
more closely with industry rate groups, the WHSCC can do more to develop and make
available, where necessary, suitable employment opportunities with alternate employers.

       The New Brunswick Federation of Labour therefore recommends that the
W.C. Act return to work provisions (Section 42.1) be improved to increase monetary
penalties for non-compliance by employers and to obligate the WHSCC to actively
pursue alternate employment options for injured workers.

        The foregoing recommendations concerning deeming and return to work are
being advanced notwithstanding modest improvements in WHSCC policies in this regard.
Injured workers, we feel, should have all of their rights and responsibilities spelled out in
the Worker’s Compensation Act and not be obligated to go elsewhere to have those rights
effectively enforced. In essence, it is time the W.C. Act is updated to fully reflect the
Charter Rights of workers, as well as their rights under the New Brunswick Human
Rights Act.

       Furthermore, the WHSCC must be made to realize that policies built around weak
and ineffective legislation like Section 42.1 of the W.C. Act are themselves of little or no
value. Other jurisdictions, including our sister Atlantic Provinces, have amended their
W.C. Acts to provide stronger, more effective return to work protection for injured
workers. New Brunswick, we believe, has both a moral and legal obligation to do the
same. In doing so, we propose that the new legislation incorporate the attached
Guidelines on Rehabilitation, Retraining and Return to Work (Appendix A).




                                                                                     Page 27
4.4       Case Management

        The NBFL is on record in supporting the case management approach to claims
adjudication and administration. However, it is imperative that case management more
effectively responds to the needs of injured workers. Here, too, despite periodic
improvements, problems persist and the case management system continues to fall short
of the expectations of many injured workers and their representatives.

          Criticisms vary but generally include the following complaints

                Case managers lack medical expertise but still over-rule the
                 recommendations of medical specialists concerning the condition or
                 capacities of injured workers;
                Commission medical staff reject the reports of claimants’ doctors without
                 ever examining the injured worker;
                Too much emphasis is placed on the cost benefit analysis side of claims
                 management;
                Case management is often adversarial and confrontationist;
                Case management personnel have excessive workloads resulting in
                 inadequate communication with claimants and a poor quality of service;
                Case managers are too pro-employer respecting return to work decisions
                 leading to premature return to work outcomes for injured workers; and
                Vocational therapists are “ineffective” in requiring employers to fulfill
                 their duty to accommodate.

      The New Brunswick Federation of Labour recommends that the case
management system be examined with the objective of meeting the needs of injured
workers by ensuring

          1) that case management staffing teams are adequate and are assigned
             reasonable caseloads and support services,
          2) that safe return to work not cost benefit analysis become the primary
             consideration in claims administration,
          3) that stronger weight be given to the reports of medical specialists
             concerning the medical condition of injured workers and their work
             capacities,
          4) that in the event of a serious and continuing personality conflict between
             an injured worker and the case manager, a new case manager be assigned
             to the claim, and
          5) that vocational therapists, supported by the case manager, insist all
             pre-accident employers fulfill their duty to accommodate obligations.




Page 28
4.5    Policy Issues

       Administrative decision-making under the Workers’ Compensation Act is largely
driven by WHSCC policies. For the most part these documents are well drafted and
accessible through the Commission’s website. While all policies are regularly reviewed
in chronological order, unfortunately the review process is not an open one. In fact our
previous requests for public consultation on policy issues have been denied by the
WHSCC board of directors.

        Policies recently developed or, revised and implemented without stakeholder
input concern important matters like return to work, OHS Demerits, and the funding
policy of the WHSCC. These were changed without any public consultation. As a result
workers had no opportunity to discuss the board’s decision to raise the funding goal (ratio
of assets to liabilities) from 105% to 110%. Likewise, we had no chance to review a new
incentive program to encourage and assist injured workers to return to work or, the
introduction of an internal penalty system for safety infractions.

       This secrecy is unacceptable and, in our opinion, would not stand up to a court
challenge. Furthermore, as long as policy development rests exclusively with WHSCC
staff and the board of directors, the WHSCC can hardly maintain that there is
“transparency” in its operation.

        The Commission’s lack of transparency, we suggest is further reinforced by its
failure to make note on its website of this Independent Review of the Workplace Health,
Safety and Compensation system.

        Other jurisdictions, Prince Edward Island for example, do invite public input
around policy issues. The Island’s WCB automatically posts on its website all policies up
for review and allows interested parties 30 days to respond.

       The New Brunswick Federation of Labour recommends that the WHSCC
immediately undertake to ensure interested stakeholders have the opportunity to
participate in the policy renewal process through the development of an open and
timely consultation mechanism, preferably allowing for a 60-day response period.

        Another concern relating to policy development is the fact that new or revised
policies are not immediately available to all parties but still take effect once adopted by
the board of directors. While the Commission cites translation delays as the reason for
this situation, nevertheless it places injured workers at a disadvantage since the new
policy is immediately available for use by WHSCC staff but not all claimants and
stakeholders.

       The New Brunswick Federation of Labour recommends that all new or
revised policies become effective only when available to all interested parties and
that the necessary resources be put in place to ensure timely translation of all
WHSCC policies.

                                                                                   Page 29
       The WHSCC has numerous policies in place dealing with the Grand Bay
Rehabilitation Centre.

       While this facility is often the subject of mixed reviews, we welcome the Centre
and the unique and timely services it provides for injured workers. Unfortunately,
workers have to travel to Grand Bay from all corners of the province and language
becomes an obstacle for some claimants. This raises the need to consider the
development of a comparable facility located in northern New Brunswick, built and
operated by the WHSCC alone or, in conjunction with the NB government.

        The New Brunswick Federation of Labour recommends that the WHSCC
retain and continue to operate the Grand Bay Rehabilitation Centre; also, that the
feasibility of developing a comparable facility in northern New Brunswick be
examined.


4.6       Expanded Coverage

       Workers’ compensation coverage under the Act and regulations as now written is
mandatory for all workplaces with three or more workers and fishing boats with more
than 25 workers. Specifically excluded from coverage are outworkers, domestics and
most volunteers.

        Time and again this matter has been reviewed by the WHSCC with no positive
action resulting, only the status quo. Consequently, about 21 000 workers are presently
without mandatory coverage although voluntary coverage is still possible.

       The New Brunswick Federation of Labour recommends that the W.C. Act be
amended to provide for mandatory coverage for all workplaces employing at least
one worker, including the fishing industry, outworkers and domestics, as well as
volunteers and workers employed by native employers.

          The basic arguments in favour of expanded coverage are:

                Workers and workers’ representatives argue for protection as a simple
                 matter of equity: all workers should be covered.
                Employers’ groups generally accept the notion that protection from being
                 sued is worth the cost of the insurance.
                Employers who are not excluded argue for the inclusion of the other
                 employers in order to eliminate a competitive disadvantage and create a
                 level playing field.
                The cost of accidents should be borne by employers and not transferred to
                 the public through the health or social system.

      As for the suggestion that small employers are less able to pay for workers’
compensation than larger employers, we disagree that this is justification for their

Page 30
exemption. Many of the employers affected fall into the service sector and, as the
Commission itself acknowledges, involve small stores and offices. That being the case
they would largely fall into rate groups with premiums that are extremely low. In short,
these employers would receive quality insurance coverage at a cheap price.

        With respect to outworkers, the trend today towards more flexible work
arrangements makes their inclusion imperative. As more and more employers encourage
workers to perform work in their homes, we now have the indefensible situation where
some workers are covered by workers’ compensation and others are not. To afford
protection to a clerical worker, for example, but deny it to a garment industry
pieceworker operating at home or away from the control or management of the company
supplying materials is illogical. Clearly, the definition used to exclude outworkers is
outdated.

        The current situation relating to volunteer workers also is in need of improvement
for several reasons. First, The Occupational Health and Safety Act applies to all
workplaces under provincial jurisdiction including those with volunteer workers.
Extending compensation coverage to all volunteers would reinforce that these workers
and their employers have legislated OHS obligations and responsibilities and in return are
protected in the event of workplace accidents and illnesses.

       Secondly, just as employees working for an employer who is not covered by
workers’ compensation are free to sue their employer, another employer, or other workers
as a result of a workplace accident so, too, can volunteer workers excluded from
compensation coverage. Again, this is not in the best interests of workers or employers
and a better solution is immunity from lawsuits in return for guaranteed benefits for
volunteer workers in accordance with our no-fault workers’ compensation system.

        Thirdly, the cost of extending compensation to all volunteer workers, regardless
of the level of risk, is small in comparison to the potential liability now carried by all
parties concerned, namely – employers using volunteer labour, their paid employees and
the WHSCC which is legally responsible for ensuring that workplaces with volunteers
also fully comply with all applicable health and safety laws.

         As for questions relating to the determination of the loss of earnings incurred by
volunteer workers injured in the workplace, we propose that they continue to be treated
the same as other workers. In cases where volunteer workers have a regular job the level
of coverage and re-employment criteria should be based on those earnings since they best
reflect the injured volunteer’s actual pre-accident earnings. Where the volunteer worker
has no earnings they should receive compensation benefits based on the earnings of a
paid employee doing comparable work in the same workplace.




                                                                                   Page 31
4.7       Redraft of W.C. Act

        Piecemeal changes over the years have left the Workers’ Compensation Act
disjointed and complex to follow and understand, so much so that on a number of
occasions court decisions have alluded to the need to rewrite this important piece of
legislation. But while the process of redrafting the Act actually commenced over a
decade ago, nothing has materialized to date. If properly done, we believe the end result
would be good for workers, employers and WHSCC staff allowing all parties to better
know their rights and responsibilities in the event of workplace injuries.

        The New Brunswick Federation of Labour therefore recommends that the
WHSCC make it a priority to complete the redraft of the Workers’ Compensation
Act with the proviso that the new version be worker friendly and not result in any
loss of current legislative rights or compensation principles.




Page 32
5.0    APPEALS SYSTEM
        Appeal procedures relating to workers’ compensation matters vary widely by
jurisdiction. In New Brunswick Section 21 of the WHSCC Act establishes the
framework for appeals of WHSCC decisions by persons with a direct interest.

        From the perspective of injured workers it is critical that the appeals system be
fair, impartial, user friendly and timely in holding hearings and rendering decisions.
Upon examining the appeals system and gathering input from our members we offer the
following comments.


5.1    Time Limits

        The existing time limits for appeals – one year from the date of the decision being
appealed, is far too short and, considering most WCBs have no time limits the current
rules are very unfair. Also, until altered in 2001, the previous indefinite time frame for
appeals posed no problem and was more equitable for workers.

        Many injured workers are unfamiliar with workers’ compensation legislation and
policies. For the most part they are usually ill prepared to deal with unfavourable Board
decisions concerning their claim for compensation. To impose a very narrow window of
opportunity for the launching of appeals places undue pressure on workers. It also
overlooks the time needed to consult and gather information in support of workers’
compensation appeals, which often involve difficult medical issues.

       The New Brunswick Federation of Labour therefore recommends that
Section 21(1.1) of the W.C. Act be amended to provide that the time limit for filing
appeals with the Appeals Tribunal shall be indefinite.


5.2    Appeal Participants

        The Federation is of the view that appeals launched by injured workers should be
limited to the appellant and his/her representative. Both the Board and the employer need
not be involved at this stage. The WHSCC decision, including reasons, has already been
rendered and placed before the Appeals Tribunal. It is up to the injured worker, without
the presence of WHSCC staff, to convince the Tribunal to alter that decision. With the
exception of Return To Work appeals, employers should also be prohibited from taking
part in appeal hearings of workers.

       The growing involvement of Employer Advocates and employer legal counsel has
made the appeals process more adversarial in nature. This is hardly surprising since the
Employer Advocates make employers aware of their right to challenge WHSCC
decisions in favour of injured workers. Their willingness to initiate employer appeals,
prepare interventions and, to actually present the appeal arguments, all at no cost to the

                                                                                   Page 33
employer, makes it imperative that injured workers now be represented at appeal
hearings. Making the process more adversarial in nature is, we feel, not a positive
development for injured workers.

       The New Brunswick Federation of Labour recommends that Section 21(8) of
the W.C. Act be amended to clarify that for the purpose of worker appeals,
excluding Return To Work decisions, only the worker and their representative shall
be considered to have a direct interest and allowed to participate.


5.3       Decision Time Frames

        Unlike some tribunals, the Act does not impose time limits on the Appeals
Tribunal for holding hearings or, following completion of the hearing, to make available
a written summary of its decision with reasons. It is in the best interests of all parties to
render decisions sooner than later. For some time the Appeals Tribunal made every effort
to expedite this process and actually came very close to its stated goal of hearing all
appeals and sending out written decisions within 90 days of the date of the appeal being
submitted. This is no longer the case, however, and lengthy delays are occurring in the
hearing of appeals, as well as the rendering of decisions despite improvements in the
processing time for decisions in 2006.

        Federation members and injured workers in general are disturbed that the overall
time-frame for appeals, start to finish, has grown. For injured workers and their families
caught up in appeals system delays, justice delayed is justice denied. Legislated time
frames, we feel, would serve to force all parties to expedite appeal hearings and the
writing of Appeals tribunal decisions; the hiring of the necessary resources to make this a
reality could then be justified legally. Such is the case in Newfoundland and Labrador,
which allows 60 days for the appeals process to be completed.

      The New Brunswick Federation of Labour recommends that the Workplace
Health, Safety and Compensation Commission Act be amended to require that all
workers’ compensation appeals be heard, and written decisions rendered, within
60 days of the date of the appeal being submitted.


5.4       Interim Benefits

        Lengthy delays in the completion of the appeals process is much harder on injured
workers than employers and WHSCC staff. Only the worker injured on the job, often
because of employer negligence, is forced to go without income. Moreover, the family
and social pressures that arise when a worker’s regular source of income unexpectedly
stops are considerable and escalate with time. All too often injured workers have
completely exhausted E.I. sickness benefits and personal savings and turned to social
assistance before receiving their appeal decision.


Page 34
       More and more, injured workers are foregoing their rights under the Workers’
Compensation Act because of tougher adjudication rules and delays in the handling of
appeals. Rather than report accidents, they continue working or, opt for group insurance
and sickness benefits. This growing problem should be addressed by the Review Panel
and appropriate solutions proposed in order to ensure workers apply for and receive the
compensation benefits that are rightfully theirs.

Improving the adjudication process through the implementation of an internal WHSCC
review of all adjudication decisions is not the answer, however. Experience shows this
simply adds another layer of bureaucracy to the adjudication process and only serves to
delay the final decision without appreciably impacting outcomes.

      The New Brunswick Federation of Labour recommends that an injured
worker who officially appeals a workers’ compensation claim decision, if unable to
work, be provided full loss of earnings benefits pending the outcome of their appeal.

        The New Brunswick Federation of Labour further recommends that
New Brunswick follow the lead of the 2005 Manitoba Review Panel proposal, as well
as Quebec and require employers to continue the injured worker on the payroll for
the first two weeks of any compensation claim involving loss of earnings subject to
later reimbursement.

       Providing for continuation of a person’s income while awaiting the completion of
an appeal process or inquiry is currently required under the NB Police Act and we see no
reason why injured workers should not be treated similarly.


5.5    Implementing Decisions

       Our members are also concerned that WHSCC staff delay implementing decisions
of the Appeals Tribunal or, only partially carry out the direction given by the Tribunal.
This too, is frustrating for injured workers, as is the refusal of the Commission to
adjudicate claims taking into account prior decisions of the Appeals Tribunal involving
the same issues.

        Hopefully, members of the Review Panel will closely examine Appeals Tribunal
results which on average show 60% of the appeals initiated fully favour the injured
worker while another 7% partially support the worker. This tells ourselves that the
Commission is determined to ignore the findings of the Appeals Tribunal regardless of
the impact of their actions on injured workers or, the inefficiencies it creates in our
workers’ compensation system.

       The New Brunswick Federation of Labour recommends that the Review
Panel direct the WHSCC to adopt appropriate measures to ensure Appeals
Tribunal decisions are quickly implemented and also, respected in the adjudication
of future claims.

                                                                                  Page 35
6.0       WHSCC STRUCTURE
        The New Brunswick Federation of Labour named the sole worker representative
to the study committee, which recommended the 1995 merger of the former Worker’s
Compensation Board and Occupational Health and Safety Commission into today’s
Workplace Health, Safety and Compensation Commission. Labour supported the merger
under two conditions: 1) OHS matters would not become a secondary consideration
under the new commission, 2) the new board of directors structure would be equitable
and fair with equal employer/worker representation.

        Twelve years later it is clear that the merger is not working…that workplace
health and safety is not the priority it can and must become if New Brunswick workers
are ever to enjoy hazard-free workplaces that prevent work-related injury, illness and
death and promote the well-being of workers, their families and their communities. This,
we believe, will only happen with the separation of responsibilities for workplace health
and safety from worker’s compensation matters.

        But, the NBFL also has serious reservations about the WHSCC’s board structure
in place today. Issues of concern to ourselves include: the composition of the board of
directors, board responsibilities and governance rules, the appointment process and terms
of office, as well as the role of government in health, safety and compensation matters.
These two must be addressed by the Review Panel.


6.1       Return to NB Occupational Health and Safety Commission

As already pointed out, the WHSCC has failed to protect workers by ensuring their health
and safety is the Commission’s first priority. The low level of funding accorded health
and safety, the merged commission’s passive approach to OHS enforcement, as well as
its failure to keep health and safety laws current, are only a few reasons why the NBFL
can no longer support a single agency for health, safety and compensation in New
Brunswick.

The New Brunswick Federation of Labour recommends the immediate
re-establishment of the former NB Occupational Health and Safety Commission
with the same board structure and legal responsibilities, and sufficient funding from
both the WHSCC and government to enable it to effectively administer the
NB Occupational Safety Act and Regulations.

Administered by a board of directors with equal worker/employer representation and
operating by consensus the former NBOHSC was extremely successful in advancing
workplace health and safety matters including OHS laws, enforcement and training.
Stakeholder involvement and input were key priorities, as was the involvement of
workers in health and safety workplace activities.



Page 36
With the WHSCC, experience has shown that employer assessment rates and the
containment of medical costs and benefits come first and everything else is secondary.
This, moreover, is not likely to change without legislation providing for the legal
separation of workplace health and safety affair from the wokers’ compensation system,
as is currently the case in many provinces in Canada.


6.2    WHSCC Board of Directors

       The WHSCC, it must be emphasized, is NOT simply another government
department. The founding principles of workers’ compensation in Canada make it very
clear that this system is to be adjudicated and administered by an independent
commission. This fundamental principle is as important today as when it was first stated
in 1912 by Sir William Meredith. For this reason, the Federation views seriously any
erosion of the WHSCC’s independence.

       In 1995, the WHSCC board of directors consisted of a chairperson, a voting
president/CEO, three members representing employers, three members representing
workers, one member representing the general public and, the Chairperson of the
Appeals Tribunal as a non-voting member. In response to a request by the NBFL for
more worker representation an additional employer and worker position were added to
the board in 2000 and, to remove possible conflicts between the president/CEO and
stakeholder board members, the CEO became a non-voting board member.

       The unique nature of the WHSCC is that it has been structured to be a stakeholder
driven organization, with employers and workers being the two key stakeholder groups.
Given that workers’ compensation is a no fault insurance system which affects the rights
of both workers and employers, it is imperative that both play a major role in WHSCC
decision-making and, insofar as possible, decision-making be by consensus.

        Unfortunately, the presence of a public sector representative with voting
privileges on the board of directors, undermines consensus building. Appointed by
government, the individual holding this position doesn’t represent any specific
stakeholder group and therefore is accountable only to government. But this is also, the
role of the chairperson – to represent government and the public interest. True equality
between the employer and worker communities in WHSCC decision-making, we feel, is
only possible with a board of directors comprised solely of worker and employer
representatives, in equal numbers and, balanced by a chairperson having the confidence
and trust of the two parties.

       The New Brunswick Federation of Labour recommends therefore that the
structure of the WHSCC board of directors be revised by amending the WHSCC
Act to provide for

            a chairperson appointed by government and acceptable to workers
             and employers,

                                                                                Page 37
              four representatives of workers,
              four representatives of employers, and
              the WHSCC President/CEO who shall be a non-voting member.

       With this new structure, both the member appointed to represent the general
public and the Chairperson of the Appeals Tribunal would cease to be part of the board.
As already noted, the chairperson would represent the public interest and being a person
acceptable to business and labour would also be well suited to ensure consensus
decision-making comes about.

        In advocating removal from the board of directors of the Chairperson of the
Appeals Tribunal, we wish to point out that as a non-voting member the person in
question rarely participates in board deliberations other than agenda items relating to the
appeals system. This, we suggest, can still be accomplished by having the same person
report at regular board meetings in the same manner as do senior staff responsible for
OHS operations, rehab services, compensation affairs, corporate services and finances.
Moreover, making this change would reinforce the independent role of the Appeals
Tribunal while still holding it accountable.


6.3       Appointments/Terms

       The WHSCC Act provides that the board chairperson is a person selected by
government for an appointment of up to four years and is eligible for re-appointment with
board approval. Other members of the board of directors have three-year terms of office
and may be re-appointed for one additional term only.

        This inconsistency in appointments between the chairperson and members is of
concern to ourselves, as is the permanent ineligibility of members who have served two
terms. While a break in service is a reasonable requirement, we would prefer that all
board members be eligible for re-appointment at a later date. This would result in greater
equity in board appointments.
        The NBFL being the largest central labour body in the province, we also maintain
that the appointment of worker representatives should be through the federation of labour.
From the origins of the WCB in New Brunswick this was the practice and we believe it
should be restored.

        Most unions in this province belong to the New Brunswick Federation of Labour
directly or, indirectly through their membership in our parent body, the Canadian Labour
Congress. Moreover, the structure of the NBFL ensures each worker representative on
the board of directors is accountable and obligated to report on their activities. And
biennial NBFL conventions allow for candid discussions of workplace health, safety and
compensation matters and the development of policies to help board members in their
deliberations – an important consideration in the workings of a stakeholder based
organization like the WHSCC.


Page 38
       The New Brunswick Federation of Labour recommends that the WHSCC
Act be amended to provide that all members of the WHSCC board of directors
including the chairperson be appointed for a term of three years and eligible for
re-appointment for one additional term without a break in service. After a
three-year (one term) break in service each member should be eligible for
re-appointment for a further two terms.          The chairperson, appointed by
government, shall be a person acceptable to the board of directors. All nominations
for members representing workers shall be obtained through the NB Federation of
Labour.


6.4    Government’s Role

        The WHSCC is accountable to government through annual reports to the
Minister of Post-Secondary Education, Training, and Labour. Approval of the Lieutenant
Governor in Council is required for Commission by-laws and regulations under acts
administered by it, as well as for workers’ compensation assessment rates. Amendments
to these acts must be adopted by the Legislative Assembly.

         While we accept that government must have the final say over certain
Commission affairs, nevertheless it is important that government exercise its authority in
a fair and consistent manner and not be seen to be taking the side of employers or
workers when considering recommendations from the WHSCC board of directors. As we
noted earlier, this has been a problem in the past and resulted in NBFL nominees
resigning from the board of directors in 2003. Furthermore, often government has been
extremely slow in acting on board requests thereby severely hampering the Commission’s
ability to fulfill its responsibilities under the WHSCC Act.

        Government inaction or, rejection of WHSCC recommendations, we believe, is
usually attributable to political interference and not the soundness of proposals being
advanced by the Commission. This is unacceptable and, unless eliminated, weakens the
Commission and its status as an independent agency responsible for workplace health,
safety and compensation matters in the province.

       The New Brunswick Federation of Labour recommends that the legal
authority and independence of the WHSCC be strengthened by providing it with the
authority to draft its own regulations and requiring government to implement
Commission recommendations within six months or, failing as much, to provide a
public response stating the position of government on outstanding proposals.


6.5    Confidentiality and Conflict of Interest

       Sections 11 & 12 of the W.H.S.C.C. Act deal with conflict of interest and
confidentiality on the part of board members and staff. Each of these sections, as


                                                                                  Page 39
currently worded, are excessively broad and restrictive, so much so that if strictly applied
would likely see all board members in a continuous conflict of interest.

        In our view employer/worker representatives are, and should be, knowledgeable
of and interested in their employer/union’s affairs, especially health, safety and
compensation matters. This is precisely why they are nominated for the board of
directors. And the same is true of the chairperson and his/her relationship with
government. Given this reality, Sections 11 and 12 of the W.H.S.C.C. Act should be
rewritten.

       Conflict of interest and confidentiality rules need to reflect the necessity of
workers and employers cooperating to find common ground in the prevention of
accidents and the development of equitable compensation programs and services.
Without active consultation and communication between board members and stakeholder
organizations this will not happen.

      The New Brunswick Federation of Labour recommends that Sections 11 &
12 of the W.H.S.C.C. Act be amended to better capture the unique tripartite
composition of the WHSCC board of directors and the necessity for regular liaison
between board members and stakeholder organizations.




Page 40
7.0    IMPROVEMENTS AFFORDABLE
        New Brunswick workers have endured a disproportionate share of the pain
resulting from the extensive cuts to the province’s workers’ compensation system in the
nineties. For the most part these cuts were implemented for the sole purpose of
eliminating the then WCB’s unfunded liability and to reverse rising employer assessment
rates. That injured workers continue to bear the full burden of the many restrictive
changes imposed by government at the request of the employer community is
wrong.

        Without question the Workplace Health, Safety and Compensation Commission is
financially healthy. Assets held to meet future benefit obligations for past injuries
reached $1.035 billion at the end of 2006, representing a 111.0% funded liability.


7.1    Unfunded Liability Misrepresented

        As stated in previous NBFL submissions, employer claims in the early nineties
that the province’s workers’ compensation system was on the verge of bankruptcy were
greatly exaggerated notwithstanding a record unfunded liability of $92.9 million in 1991.
We maintain that the unfunded liability problem was seriously misrepresented to gain
political support for legislative cuts (Bill 55) which focused on restricting access to
workers’ compensation and reducing benefits for injured workers.

       In reality, however, accidents had been steadily declining from 1989 onwards and,
along with the cuts to benefits, were largely responsible for the huge surpluses recorded
from 1993 to 1995. As a result the unfunded liability was fully eliminated as of
January 1, 1996, a full 9 years ahead of its scheduled retirement in 2005.

       These hefty surpluses continued until 2000 when the WHSCC recorded a
$19.9 million operating deficit. Additional deficits were incurred from 2001 to 2003
primarily because of poor investment returns. However, as expected the markets
eventually improved and the Commission once again generated surpluses in 2004, 2005
and 2006. As the following table shows last year’s surplus was a staggering
$82.1 million.




                                                                                 Page 41
                             WHSCC Financial Information



          Year             Surplus / Loss      Unfunded Liability          Average
                             (Millions)            (Millions)          Assessment Rate
                                                                              $

          1991                                        (92.9)
          1992                  12.2                  (80.7)                  2.22
          1993                  16.6                  (66.1)                  2.18
          1994                  39.7                  (63.0)                  2.07
          1995                  43.6                  (19.0)                  1.73
          1996                  24.9                                          1.63
          1997                  24.1                   13.0                   1.55
          1998                  18.9                   31.7                   1.59
          1999                  17.3                   49.0                   1.66
          2000                 (19.9)                  29.1                   1.61
          2001                 (35.7)                  (6.6)                  1.58
          2002                 (35.1)                 (41.7)                  1.86
          2003                 (18.5)                  60.2                   2.03
          2004                  25.4                    9.8                   2.20
          2005                  30.2                   20.3                   2.16
          2006                  82.1                  102.5                   2.14
          2007                                                                2.10

          *      Fifteen-year average surplus (1992-2006)
                        $14.3 million

          *      WHSCC Funded Ratio (December 31, 2006)
                     111%

        From 1993 to the present injured workers have been forced to accept tougher
claims adjudication rules and reduced benefits. Employers, on the other hand, have
benefited from both annual WHSCC surpluses and low average assessment rates.
Premiums steadily declined from a high of $2.22 in 1992 to a low of $1.55 in 1997. For
the years 1993 to 2006 inclusive the average rate was $1.87, among the lowest in Canada.

        The provisional rate for 2007 is $2.10, which represents the third consecutive year
that the assessment rate decreased. And the 2006 WHSCC Stakeholder Report highlights
the fact that New Brunswick’s rates continue to remain the lowest in Atlantic Canada and
the sixth lowest of all Canadian jurisdictions. Only the Prairie Provinces,
British Columbia and the Territories have lower average assessment rates.



Page 42
        While employers paid a small surcharge for a short time in the nineties to help
eliminate the unfunded liability, the fact remains that injured workers have sacrificed the
most and continue to do so thanks to this province’s inferior workers’ compensation laws,
benefits and services.

       The WHSCC tells stakeholders that it is committed to holding employer
assessment rates at the lowest level possible, while providing the best possible benefits to
injured workers. While this is true for employer premiums, clearly the WHSCC is not
providing the best possible benefits to injured workers. And judging by the Commission’s
2006-2011 Strategic Plan, it has no intention of doing so in the coming years.

       Frankly, the callous disregard shown the interests of workers by the WHSCC
board of directors is shameful and unacceptable to the New Brunswick Federation of
Labour and its affiliates. We suggest all Commissioners should ask themselves why other
WCBs have opted to treat injured workers more fairly while also, making meaningful
investments in OHS programs and services.

        In Newfoundland and Labrador, for example, the board has worked closely with
labour in implementing very successful OHS and RTW training programs funded by it
and government but operated by the Newfoundland and Labrador Federation of Labour.
Nova Scotia is actively considering similar initiatives modeled after programs already in
place in Ontario. Interestingly, each of these jurisdictions has an unfunded liability but
New Brunswick, despite a healthy balance sheet, has no plans to pursue similar positive
training initiatives. Nor is the WHSCC willing to insist that government remove the
3-day waiting period or, at the very least, allow employers to pay it.

       As we have pointed out, the financial means already exist for the WHSCC to
immediately undertake improvements to the province’s workers’ compensation benefits,
to provide better rehabilitation programs and services and, to implement enhanced
accident prevention initiatives. Moreover, significant investment in health and safety
programs will lead, we believe, to substantial savings in the future costs of workers’
compensation and lower premiums for employers.


7.2    New Revenue Sources

        But the Commission should also be looking at other possible sources of new
revenue. It could, for example, put in place more effective measures to ensure all
employers have registered with the WHSCC and are paying their assessments using
accurate payroll numbers. Fraud investigation efforts need to aggressively focus on
employer fraud not just workers. Charging higher administrative fees to self-insured
employers and increasing substantially the minimum fee charged to employers for
compensation coverage would also generate more income. The current minimum fee of
$50 is far too low, considering the protection afforded employers.




                                                                                    Page 43
       Finally, more funds could be freed up for benefits, programs and services with
changes to the WHSCC’s rigid funding rules. It is not imperative, we feel, that the W.C.
Act continue to require the Commission to maintain funding at 100% let alone the 110%
funding goal recently set by the board of directors. Employers, we note, are actively
pressuring government to relax the unfunded liability rules for pension plans and they
themselves usually carry long term debt.

       The New Brunswick Federation of Labour recommends that the WHSCC be
directed to allocate the necessary funding to allow for immediate and significant
improvements in benefits for injured workers, as well as more investments in return
to work programs and workplace health and safety initiatives; if necessary,
employer assessment rates to be raised to pay for these improvements.

       The NBFL further recommends that employer assessment rates be more
closely tied to the safety performance and investment record of employers and,
employer investment in the rehabilitation and return to work of injured employees.

       The Federation also recommends that WHSCC funding policy require that
at least 50% of annual operating surpluses shall be allocated to further benefit
improvements in future years.




Page 44
8.0    FUTURE REVIEWS
        As pointed out at the outset of our submission, the last independent public review
of New Brunswick’s workplace health, safety and compensation system was completed
in 1980. The importance of undertaking such reviews in a more timely fashion cannot be
overemphasized and to ensure as much the W.C. Act should be amended to mandate
future reviews.

        Other jurisdictions including Saskatchewan, Newfoundland and Labrador and
Prince Edward Island currently provide for reviews by statute. Although each province
differs in terms of the timing and scope of reviews, as well as who is to undertake them,
all of these jurisdictions have legislated that comprehensive reviews occur at fixed
intervals.

       While the legislated responsibility of the WHSCC board of directors includes
examining the policies and laws under its jurisdiction, there is still a need for outside
reviews to ensure the views and concerns of interested parties are actively considered by
an independent panel representing workers and employers. However, it is important that
this panel be comprised of representatives nominated by the key stakeholder
organizations.

        In advocating regular outside reviews of the workplace health, safety and
compensation system, we wish to point out to the Review Panel that as long as this brief
is, there are still important matters which our submission hasn’t addressed. Included
would be

              rate setting and the merits of a pure collective liability system,
              experience rating concerns,
              Permanent Physical impairment awards (loss of opportunity )
              occupational illnesses including those related to firefighting and the
               importance of establishing a provincial occupational disease panel, as well
               as occupational health clinics,
              workplace ergonomics rules,
              delays relating to the receipt of the initial compensation cheque, and
              the excessive workload of workers’ advocates.

       More frequent reviews of the system, would help ensure these and other concerns
are examined in a timely manner.

       The New Brunswick Federation of Labour therefore recommends that the
WHSCC Act be amended to require that a review committee with equal worker and
employer representation nominated by the key stakeholder groups, business and
labour, be constituted every four years for the purpose of undertaking a
comprehensive, public review of the province’s workplace health, safety and
compensation system.


                                                                                  Page 45
9.0       FORGING A NEW RELATIONSHIP
       The New Brunswick Federation of Labour has a proud record of achievement in
workplace health, safety and compensation matters including legislative change,
regulatory reform and worker education and training. For several decades the NBFL has
offered training in health and safety, as well as worker’s compensation, to unionized
workers across the province.

        By ourselves and in conjunction with the Canadian Labour Congress and district
labour councils, we have delivered weekend educationals, week long schools and 3-day
conferences on a wide mix of OHS and compensation topics. Using the trade union
movement’s “workers training workers” model, the Federation has educated thousands of
workers including JHSC members and local union officers. On occasion, employer
JHSC representatives have also participated in our sessions. As well labour’s pool of
qualified rank and file OHS instructors have been utilized by the WHSCC and individual
employers to deliver OHS education and training sessions.

       Workers training workers, we believe, is a proven system for the successful
development of OHS instructors but more importantly, for the efficient and effective
delivery of health and safety training programs in an adult learning environment.

         Once trained, union rank and file instructors become an integral part of the labour
movement’s ongoing efforts to secure hazard-free workplaces that prevent work-related
injury, illness and death and promote the well-being of workers, their families and
communities. They use their skills and passion for health and safety education to
facilitate health and safety training sessions in the workplace and in the community
helping JHSC members and individual workers to better understand their rights,
responsibilities and roles in building healthier and safer workplaces.

       As well as playing key roles in workplace health and safety, including their own
workplaces, many of the same instructors also work tirelessly in our communities,
including schools, further promoting actions aimed at securing healthier and safer
environments overall, this helps labour to build on its capacity to deliver quality health
and safety training effectively.


9.1       Expanding Worker OHS and RTW Training

        The New Brunswick Federation of Labour is anxious to bring union health and
safety training to a higher level in New Brunswick. Our friends at the Ontario Workers
Health and Safety Centre have indicated their willingness to work closely with us and to
make available some of the critical resources required to put in place a worker health and
safety training project designed to meet the needs of New Brunswick’s unionized
workforce. But we need other partners to be successful!



Page 46
        In Ontario and Newfoundland and Labrador and to varying degrees in most other
provinces, the agencies responsible for OHS and worker’s compensation have joined with
their provincial federations of labour to facilitate the delivery of province-wide worker
health and safety training. Since 1985 the Workplace Safety and Insurance Board of
Ontario has provided sustained funding for that province’s Workers Centre which in 2006
amounted to $9.2 million. For the same year the Newfoundland and Labrador Federation
of Labour received $606,000 in funding for education/training around accident
prevention and RTW. Previously, funds were allocated to it for OHS training.

        The NBFL believes that with the recent introduction of mandatory training for
JHSC members now is the time to forge a similar partnership with the Workplace Health,
Safety and Compensation Commission of New Brunswick. Despite differences with the
WHSCC over benefits for injured workers and enforcement of workplace health and
safety laws, when it comes to the importance of OHS training we have much in common
and have successfully cooperated on the development and implementation of many
WHSCC health and safety education initiatives including the annual WHSCC Health and
Safety Conference and the curriculum for the new 3-day JHSC training program.
Working together to bring about a provincial worker OHS training centre funded by the
WHSCC and operated by the NBFL will enable us to forge a new relationship while
bringing quality health and safety training into more New Brunswick workplaces.

        We believe that this project, if supported, can make a huge difference for many
New Brunswick workers and their employers. But it’s one thing to envision a future with
safer, healthier workplaces; it’s quite another thing to realize that vision. This is why we
are seeking the support of the Review Panel for our proposal which, if endorsed in
principle by the Commission, would then be developed in greater detail with a business
plan and budget for formal consideration and approval, hopefully, by the WHSCC board
of directors.

        As might be expected, a project of this nature will be expensive and unlike the
Commission’s current involvement with sectoral training initiatives such as the
NB Construction Safety Association, would have to be funded out of general revenues
rather than a special assessment. However, working with the WHSCC and Ontario
Workers’ Centre we are confident the Centre’s materials and curriculum can be adapted
for use here in New Brunswick thereby lowering overall costs of the project.

        Finally, subject to the necessary funding being made available, the NBFL is also
interested in developing a workers’ compensation resource centre dedicated to awareness
education around the rights of injured workers and return to work training for RTW
committees throughout the province.          WCBs in other provinces like Ontario,
Newfoundland and Labrador and Nova Scotia are funding federation of labour initiatives
in this area as well and we urge the Review Panel to look at developments in other
jurisdictions with a view to endorsing similar initiatives here in New Brunswick.
Moreover, we strongly encourage the Panel to take time to visit the Ontario Workers
Health and Safety Centre, as well as the Ontario and Newfoundland and Labrador


                                                                                    Page 47
federations of labour in order to better understand the health, safety and compensation
training programs each offers with WCB support.

        The Workers Health and Safety Centre (WHSC) has existed since 1979. Its
immediate goal is to get quality health and safety training into as many Ontario
workplaces as possible knowing that this will make a difference in the lives of workers.
It achieves this by developing quality up-to-date training materials and highly skilled and
motivated instructors. Through its extensive base of well-trained workplace rank and file
instructors the WHSC annually trains thousands of workers, union and non-union, on
legally mandated workplace training requirements and the specific needs of union OHS
activists. The Workplace Safety and Insurance Board have designated the Worker Centre
as Ontario’s “training centre”. That the Workers Health and Safety Center is willing to
assist the NBFL in developing its own worker health and safety training program is
indeed, positive news.

       The New Brunswick Federation of Labour recommends that the WHSCC be
strongly encouraged to enter into a partnership with the NBFL for the development
and funding of a worker health and safety training project to be delivered under the
umbrella of the NB Federation of Labour.

       The New Brunswick Federation of Labour further recommends that the
WHSCC be requested to consider funding a worker’s compensation resource centre
operated by the Federation and focused on compensation awareness education for
injured workers and return to work training.




Page 48
10.0 CONCLUSION
        When it comes to workplace health, safety and compensation, NBFL members are
continually telling us about the very serious problems that they encounter in their
workplaces. At the top of the list of concerns is inadequate safety training and poor
enforcement of health and safety laws. For those injured at work the biggest concerns are
being forced to forego three days of benefits and the difficulties faced in having soft
tissue claims approved and medical reports accepted.

         Workers, we believe, have the right to demand a safe, healthy workplace and, if
injured, to be treated respectfully and to be compensated fairly. Regretfully, all too often
this is not happening.

        New Brunswick’s workplace health, safety and compensation system is no longer
balanced and hasn’t been since 1993 and the enactment of Bill 55 which clearly,
benefited employers not workers. Workers have suffered enormously because of deep
and lasting cuts to this province’s workers’ compensation laws and the failure to
effectively police New Brunswick’s health and safety legislation. Surely, it’s time
government puts aside the employer agenda and restores the historic balance between
worker and employer interests by acting on the longstanding concerns of New Brunswick
workers.

       In closing, we urge the Review Panel to seriously heed the input provided by the
New Brunswick Federation of Labour on behalf of the province’s workers and to produce
a final report with recommendations which, if adopted by government, will make
New Brunswick’s workplace health, safety and compensation system fair for workers.




                                                                                    Page 49
                    SUMMARY OF RECOMMENDATIONS



3.0       PREVENTING WORKPLACE ACCIDENTS AND ILLNESSES
3.1       OHS Administration and Enforcement

          1.    The New Brunswick Federation of Labour therefore recommends that the
                Review Panel call for the WHSCC to become more vigilant and
                aggressive in the prosecution of OHS violations.

          2.    The Federation further recommends that the WHSCC be directed to
                develop and fully implement a workplace health and safety action plan
                incorporating

                      a substantially larger budget for health and safety activities,
                      increased compliance staff,
                      an increase in the number and thoroughness of workplace
                       inspections,
                      more use of stop work orders and an end to the use of written
                       suggestions for improvement in place of written orders,
                      more prosecutions and higher fines for serious OHS violations with
                       a new maximum fine of $500,000,
                      better tracking and reporting on workplace safety issues including
                       accidents, near misses, training and JHSC activities,
                      accident reduction targets, including lost-time accidents,
                      a more effective protocol for workplace visits by compliance staff,
                      stronger enforcement of employer workplace training obligations,
                       and
                      a penalty based ticketing system for less serious OHS infractions.

3.2       Strengthening Internal Responsibility

          3.    The New Brunswick Federation of Labour therefore recommends that
                Section 15 of the OHS Act be changed by replacing the words “A
                committee may” with the wording “A committee shall” perform those
                functions spelled out in the legislation.

          4.    The NBFL strongly recommends that the Act be amended to require the
                employer to respond in writing within 21 days upon receiving written
                recommendations from a committee and; that the response shall contain a
                time table for implementing the recommendations the employer agrees


Page 50
      with and give reasons why the employer disagrees with any
      recommendations that the employer does not accept.

5.    The NBFL therefore recommends that the Act be amended to require the
      employer and/or the WHSCC to provide the JHSC a copy of all relevant
      health and safety documents including all OHS tests and reports, as a
      matter of course. At the request of the committee, the WHSCC should
      also be required to send an annual summary of data relating to the number
      of fatalities, lost workday cases, workdays lost, non-fatal cases requiring
      medical care but no lost workdays and incidences of occupational
      illnesses.

6.    The NBFL further recommends that the Act allow one hour of preparation
      time before each meeting or, if necessary, additional time subject to
      committee approval.

7.    The New Brunswick Federation of Labour therefore recommends that the
      OHS Act require the employer to obtain agreement from the JHSC prior to
      implementing safety decisions, including safety audit programs, which
      affect worker health and safety.

8.    The New Brunswick Federation of Labour therefore recommends that
      Section 21(2) be changed to prohibit the employer from assigning another
      employee to perform the work of an employee who has exercised the right
      to refuse unsafe work until a determination has been made by a
      compliance officer.

9.    The New Brunswick Federation of Labour therefore recommends that the
      Act be changed to provide wage and benefits protection for all workers
      affected by health and safety work stoppages under the OHS Act.

10.   The NBFL recommends that Section 14(3) be broadened to clearly spell
      out that

          in a unionized workplace, the worker JHSC members must be
           chosen by the trade union(s) representing employees, and
          worker members must be non-management employees at the
           workplace who are selected by the workers and who do not exercise
           managerial functions (the authority to discipline, hire, fire or
           recommend discipline, hiring or firing.)

11.   The New Brunswick Federation of Labour recommends that the OHS Act
      be amended to require employers to provide all employees a minimum of
      8 hours of workplace hazard specific training annually, fully paid by the
      employer.

                                                                         Page 51
          12.   The NBFL further recommends that the legal onus on employers be
                strengthened by adopting the same training of workers provisions found in
                Section 19 of Saskatchewan’s health and safety legislation whereby

                1) An employer shall ensure that a worker is trained in all matters that are
                   necessary to protect the health and safety of the worker when the
                   worker:

                      a. begins work at a place of employment, or
                      b. is moved from one work activity or worksite to another that
                         differs with respect to hazards, facilities or procedures.

                2) the training required by subsection (1) must include:

                       a) procedures to be taken in the event of a fire or other
                          emergency;
                       b) the location of first aid facilities;
                       c) identification of prohibited or restricted areas;
                       d) precautions to be taken for the protection of the worker from
                          physical, chemical or biological hazards;
                       e) any procedures, plans, policies and programs that the employer
                          is required to develop pursuant to the Act or any regulations
                          made pursuant to the Act that apply to the worker’s work at the
                          place of employment; and
                       f) any other matters that are necessary to ensure the health and
                          safety of the worker while the worker is at work.

                3) an employer shall ensure that the time spent by a worker in the training
                   required by subsection (1) is credited to the worker as time at work,
                   and that the worker does not lose pay or other benefits with respect to
                   that time.

                4) an employer shall ensure that no worker is permitted to perform work
                   unless the worker:

                       a- has been trained, and has sufficient experience, to perform the
                          work safely and in compliance with the Act and the
                          regulations; or
                       b- is under close and competent supervision.

3.3       Improving the Regulatory Process

          13.   The New Brunswick Federation of Labour therefore recommends that a
                provincial OHS Advisory Committee be established by the WHSCC
                following active consultation with the labour and employer communities.


Page 52
4.0   RESTORING THE BALANCE IN WORKERS’ COMPENSATION
4.1   Entitlement Rules

      14.   The New Brunswick Federation of Labour recommends that the
            Workers’ Compensation Act be amended to restore the pre-1993 definition
            of accident and standard of proof whereby it will be presumed that an
            accident or illness arose out of and in the course of employment unless the
            opposite is proven; to make work related stress compensable and; to
            reinforce that the injured worker shall receive the benefit of the doubt at
            all times.

4.2   Benefits

      15.   The New Brunswick Federation of Labour therefore recommends that the
            W.C. Act be amended to ensure that wage loss benefits shall be payable in
            an amount equal to 90% of the worker’s loss of earnings after the date of
            the accident.

      16.   The New Brunswick Federation of Labour therefore recommends that the
            W.C. Act be amended to provide for removal of the waiting period for
            wage loss benefits.

      17.   The New Brunswick Federation of Labour further recommends that the
            W.C. Act be amended to require the “employer” to compensate an injured
            worker at the regular rate of pay for the day of an injury, provided the
            worker reports the injury.

      18.   The New Brunswick Federation of Labour recommends that the W.C. Act
            be amended to remove all restrictions on salary top-ups, and to allow
            individual employers and workers to determine the payments, if any, in
            excess of legislated benefit levels.

      19.   The New Brunswick Federation of Labour further recommends that the
            W.C. Act also be amended to ensure that workers receiving compensation
            benefits as well as CPP disability benefits, shall not have their workers’
            compensation benefits reduced.

      20.   The New Brunswick Federation of Labour recommends that the W.C. Act
            be amended to ensure all workers totally disabled beyond two years
            receive weekly compensation benefits equal to at least 50% of
            New Brunswick’s average weekly earnings.

      21.   The New Brunswick Federation of Labour therefore recommends that the
            W.C. Act be amended to eliminate any limit on insurable earnings.

                                                                               Page 53
          22.   The New Brunswick Federation of Labour recommends that the pension
                benefits provided to long term claimants under Section 38.22 of the W.C.
                Act be based on 8% of the compensation paid the injured worker; also,
                that the amount set aside not be left fully in the Pension Fund but that
                there be a minimum payout of 5 years to the estate of the worker should
                he/she die without surviving dependents.

4.3       Rehabilitation and Return to Work

          23.   The New Brunswick Federation of Labour therefore recommends that the
                W.C. Act be amended to remove the deeming process by deleting in
                Section 38.1(1) the words “the earnings the worker is estimated to be
                capable of earning at a suitable occupation after sustaining the injury” and
                substituting the words “the earnings that the worker is receiving from
                employment.”

          24.   The New Brunswick Federation of Labour recommends that the W.C. Act
                (Section 43) be strengthened to require that the WHSCC “shall” undertake
                all necessary measures, including vocational rehabilitation services, to aid
                in getting injured workers back to work.

          25.   The New Brunswick Federation of Labour therefore recommends that the
                Return To Work provisions of the W.C. Act be strengthened as follows:

                1) The legal obligation to re-employ injured workers (Section 42.1) apply
                   equally to all employers covered by workers’ compensation, regardless
                   of size or, length of service.

                2) Employers be obligated by law to accommodate the injured worker’s
                   medical restrictions including redesigning the job site where
                   appropriate

                3) There be an onus on employers to provide alternate work if the injured
                   worker cannot return to his or her pre-accident job.

                4) To protect against unilateral accommodation by the employer, which
                   does not respect the interests of the injured worker or the rest of the
                   bargaining unit, including seniority rights, joint return to work
                   committees be legislated at the workplace.

                5) The WHSCC be given the power, reinforced by stronger penalty
                   options, to order employers to re-instate injured workers where
                   employers fail to meet a rigid test of “undue hardship”.

                6) There be special protection against unfair dismissal of re-employed
                   injured workers.

Page 54
      26.    The New Brunswick Federation of Labour therefore recommends that the
             W.C. Act return to work provisions (Section 42.1) be improved to increase
             monetary penalties for non-compliance by employers and to obligate the
             WHSCC to actively pursue alternate employment options for injured
             workers.

4.4   Case Management

      27.    The New Brunswick Federation of Labour recommends that the case
             management system be examined with the objective of meeting the needs
             of injured workers by ensuring

             1.   that case management staffing teams are adequate and are assigned
                  reasonable caseloads and support services,
             2.   that safe return to work not cost benefit analysis become the primary
                  consideration in claims administration,
             3.   that stronger weight be given to the reports of medical specialists
                  concerning the medical condition of injured workers and their work
                  capacities,
             4.   that in the event of a serious and continuing personality conflict
                  between an injured worker and the case manager, a new case
                  manager be assigned to the claim, and
             5.   that vocational therapists, supported by the case manager, insist all
                  pre-accident employers fulfill their duty to accommodate obligations.

4.5   Policy Issues

      28.    The New Brunswick Federation of Labour recommends that the WHSCC
             immediately undertake to ensure interested stakeholders have the
             opportunity to participate in the policy renewal process through the
             development of an open and timely consultation mechanism, preferably
             allowing for a 60-day response period.

      29.    The New Brunswick Federation of Labour recommends that all new or
             revised policies become effective only when available to all interested
             parties and that the necessary resources be put in place to ensure timely
             translation of all WHSCC policies.

      30.    The New Brunswick Federation of Labour recommends that the WHSCC
             retain and continue to operate the Grand Bay Rehabilitation Centre; also,
             that the feasibility of developing a comparable facility in northern
             New Brunswick be examined.

4.6   Expanded Coverage

                                                                               Page 55
          31.   The New Brunswick Federation of Labour recommends that the W.C. Act
                be amended to provide for mandatory coverage for all workplaces
                employing at least one worker, including the fishing industry, outworkers
                and domestics, as well as volunteers and workers employed by native
                employers.

4.7       Redraft of W.C. Act

          32.   The New Brunswick Federation of Labour therefore recommends that the
                WHSCC make it a priority to complete the redraft of the
                Workers’ Compensation Act with the proviso that the new version be
                worker friendly and not result in any loss of current legislative rights or
                compensation principles.


5.0       APPEALS SYSTEM
5.1       Time Limits

          33.   The New Brunswick Federation of Labour therefore recommends that
                Section 21(1.1) of the W.C. Act be amended to provide that the time limit
                for filing appeals with the Appeals Tribunal shall be indefinite.

5.2       Appeal Participants

          34.   The New Brunswick Federation of Labour recommends that Section 21(8)
                of the W.C. Act be amended to clarify that for the purpose of worker
                appeals, excluding Return To Work decisions, only the worker and their
                representative shall be considered to have a direct interest and allowed to
                participate.

5.3       Decision Time Frames

          35.   The New Brunswick Federation of Labour recommends that the
                Workplace Health, Safety and Compensation Commission Act be
                amended to require that all workers’ compensation appeals be heard, and
                written decisions rendered, within 60 days of the date of the appeal being
                submitted.

5.4       Interim Benefits

          36.   The New Brunswick Federation of Labour recommends that an injured
                worker who officially appeals a workers’ compensation claim decision, if
                unable to work, be provided full loss of earnings benefits pending the
                outcome of their appeal.

Page 56
      37.   The New Brunswick Federation of Labour further recommends that
            New Brunswick follow the lead of the 2005 Manitoba Review Panel
            proposal, as well as Quebec and require employers to continue the injured
            worker on the payroll for the first two weeks of any compensation claim
            involving loss of earnings subject to later reimbursement.

5.5   Implementing Decisions

      38.   The New Brunswick Federation of Labour recommends that the Review
            Panel direct the WHSCC to adopt appropriate measures to ensure
            Appeals Tribunal decisions are quickly implemented and also, respected in
            the adjudication of future claims.


6.0   WHSCC Structure
6.1   Return to NB Occupational Health and Safety Commission

      39.   The New Brunswick Federation of Labour recommends the immediate
            re-establishment of the former NB Occupational Health and Safety
            Commission with the same board structure and legal responsibilities, and
            sufficient funding from both the WHSCC and government to enable it to
            effectively administer the NB Occupational Safety Act and Regulations.

6.2   WHSCC Board of Directors

      40.   The New Brunswick Federation of Labour recommends therefore that the
            structure of the WHSCC board of directors be revised by amending the
            WHSCC Act to provide for

              a chairperson appointed by government and acceptable to workers and
               employers,
              four representatives of workers,
              four representatives of employers, and
              the WHSCC President/CEO who shall be a non-voting member.

6.3   Appointments/Terms

      41.   The New Brunswick Federation of Labour recommends that the WHSCC
            Act be amended to provide that all members of the WHSCC board of
            directors including the chairperson be appointed for a term of three years
            and eligible for re-appointment for one additional term without a break in
            service. After a three-year (one term) break in service each member
            should be eligible for re-appointment for a further two terms. The

                                                                              Page 57
                 chairperson, appointed by government, shall be a person acceptable to the
                 board of directors. All nominations for members representing workers
                 shall be obtained through the NB Federation of Labour.

6.4       Government’s Role

          42.    The New Brunswick Federation of Labour recommends that the legal
                 authority and independence of the WHSCC be strengthened by providing
                 it with the authority to draft its own regulations and requiring government
                 to implement Commission recommendations within six months or, failing
                 as much, to provide a public response stating the position of government
                 on outstanding proposals.

6.5       Confidentiality and Conflict of Interest

          43.    The New Brunswick Federation of Labour recommends that Sections 11
                 & 12 of the W.H.S.C.C. Act be amended to better capture the unique
                 tripartite composition of the WHSCC board of directors and the necessity
                 for regular liaison between board members and stakeholder organizations.



7.0       IMPROVEMENTS AFFORDABLE

7.2       New Revenue Sources

          44.    The New Brunswick Federation of Labour recommends that the WHSCC
                 be directed to allocate the necessary funding to allow for immediate and
                 significant improvements in benefits for injured workers, as well as more
                 investments in return to work programs and workplace health and safety
                 initiatives; if necessary, employer assessment rates to be raised to pay for
                 these improvements.

          45.    The NBFL further recommends that employer assessment rates be more
                 closely tied to the safety performance and investment record of employers
                 and, employer investment in the rehabilitation and return to work of
                 injured employees.

          46.    The Federation also recommends that WHSCC funding policy require that
                 at least 50% of annual operating surpluses shall be allocated to further
                 benefit improvements in future years.



8.0       FUTURE REVIEWS


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      47.   The New Brunswick Federation of Labour therefore recommends that the
            WHSCC Act be amended to require that a review committee with equal
            worker and employer representation nominated by the key stakeholder
            groups, business and labour, be constituted every four years for the
            purpose of undertaking a comprehensive, public review of the province’s
            workplace health, safety and compensation system.



9.0   FORGING A NEW RELATIONSHIP

9.1   Expanding Worker OHS and RTW Training

      48.   The New Brunswick Federation of Labour recommends that the WHSCC
            be strongly encouraged to enter into a partnership with the NBFL for the
            development and funding of a worker health and safety training project to
            be delivered under the umbrella of the NB Federation of Labour.

      49.   The New Brunswick Federation of Labour further recommends that the
            WHSCC be requested to consider funding a worker’s compensation
            resource centre operated by the Federation and focused on compensation
            awareness education for injured workers and return to work training.




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                                      APPENDIX A


                 GUIDELINES ON REHABILITATION, RETRAINING
                           AND RETURN TO WORK


I - Rehabilitation and Retraining Guidelines

1.        Where it is clear that the worker will be unable to safely return to employment
          with the same employer, the WHSCC must, at the earliest possible date
          following the injury, begin the process of developing, in consultation with the
          worker and his or her physician, a re-employment plan.

2.        The case management team, in particular the vocational rehabilitation officer must
          become actively involved in co-ordinating the placement of the injured worker in
          alternative employment.

3.        Any program of vocational rehabilitation or job placement must be based on the
          assumption that the worker is committed to returning to suitable and available
          employment and is willing, if necessary, to undertake retraining.

4.        Retraining is an option that must always be considered in developing a plan for
          the return of the injured worker to employment. The WHSCC must be committed
          to making the required financial investment in the retraining program.

5.        Any retraining program must incorporate the following features:

          -      The injured worker must be totally involved with the vocational
                 rehabilitation officer in the choice of a new career and at all stages of the
                 planning process in consultation with the physician if required.

          -      The plan must be realistic having regard to the medical limitations, the age,
                 aptitude and educational qualifications of the worker, but the fact that the
                 worker will have to upgrade his or her education prior to entering a
                 training course should not prevent the worker from being retrained if the
                 worker has the commitment and desire to undertake upgrading.

          -      The worker must be provided with any professional advice necessary to
                 determine what course of training would be most appropriate for that
                 worker.

          -      The object of the retraining program must be to enable the worker to
                 obtain employment in a new occupation which will establish the worker
                 in a career with the potential for earnings at least comparable to what the
                 worker could have earned in his or her former employment.

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      -      The selection of a training course will require the best professional advice
             available regarding fields of employment where there is a shortage of
             workers.


II - Return to Work Guidelines

1.    Where it is determined that the worker will be able to return to his or her former
      occupation, the case management team should be actively involved with the
      worker, his/her union, and the employer in facilitating the return of the worker,
      as soon as he or she is sufficiently recovered, to work on a full time or part-time
      basis.

2.    Safeguards must be put in place to prevent abuse and minimize the risk of further
      injury to the worker and the risk of injury to co-workers where "light duty" is
      utilized in re-integrating injured workers into the workforce. These include:

      -      The option of light duty must be voluntary for both the employer and the
             injured worker.

      -      The nature of the light duty to be performed must be meaningful. It must be
             identified and agreed upon by the doctor, worker, and vocational
             rehabilitation officer. The vocational rehabilitation officer will present a
             written plan for approval by the employer and the Commission and
             co-ordinate and monitor the program.

      -      In order for the concepts of light duty, retraining and rehabilitation to
             succeed, the employer and other interested parties must cooperate in
             promoting the rehabilitation of the injured workers.

      -      Light duty assignments with any employer(s) should be treated as a
             rehabilitative measure; workers on light duty must be supernumerary to,
             rather than part of, the normal staff complement.

      -      Workers on light duty assignment should be paid by the employer who
             will be reimbursed by the WHSCC, this ensuring the worker will receive
             his or her group benefits. The employer shall pay wages equal to that of
             which a worker was in receipt of prior to injury.

      -      There should be no additional risk to the employer who participates in a
             light duty program. If a worker is further injured while engaged in duties
             that have been identified as part of a light duty program approved by the
             WHSCC, the costs associated with such re-injury should be charged to
             the second injury fund.




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3.        If it is impractical for the pre-accident employer to provide an employment
          opportunity for the injured worker, the case management team should approach
          other employers in the same industry group to determine whether any of these
          employers can find suitable employment for the injured worker.

4.        If the worker cannot be placed with the former employer or an employer in the
          same industry group, the vocational rehabilitation officer will be required to find
          employment in another industry group.

5.        The former employer or any other employer must be encouraged to employ the
          worker through monetary incentives and penalties.




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