— TWO —
PREVENTING WORKPLACE INJURY

Each province and territory tries to prevent workplace injuries. But these efforts aren’t very successful. Every year, hundreds of thousands of workers are injured. To understand why prevention efforts don’t work, we need to look at how governments approach the problem. This chapter begins by examining how employers and workers view risk in the work-place. Do they view the risk of injury as inevitable, minimal, and acceptable? Or is risk as something imposed upon workers by employers? The perspective adopted affects subsequent approaches to prevention.

The economic perspective that risk is minimal, unavoidable, and acceptable dominates prevention efforts. As a result, state intervention in the operation of workplaces has been limited, creating the perception of safety more so than the reality of it. Employers are obligated to address hazards, but face little incentive or pressure to do so. When this hasn’t silenced worker demands, the state has tried to buy off workers with injury compensation. It has also made workers partially responsible for workplace health and safety — all the while limiting workers’ ability to protect themselves.

This pattern is rarely acknowledged. To do so would be to admit awkward truths about the exploitative nature of employment and the role the state plays in maintaining this arrangement. Instead, safety is discussed as socially desirable and even profitable. Yet, in this chapter and the one that follows, we’ll see that workers continue to be injured in droves and safety is only taken seriously when workplace injuries imperil production and social reproduction.

DEVELOPMENT OF OCCUPATIONAL HEALTH AND SAFETY IN CANADA

Perspectives on risk

Employers and workers view the risk of workplace injury differently. This isn’t surprising. Workers shoulder most of the consequences of injury while employers and their investors reap most of the rewards. For employers, risk is mostly an economic issue.¹ And the risk of workplace injury is cast as minimal, unavoidable, and acceptable. This economic perspective dominates popular discussion and public policy.²

One implication of this economic approach is that, since perfect safety is unattainable, safety initiatives should be assessed on a cost-benefit basis.³ Put bluntly, safety should only be improved when it costs less to prevent the injury than the injury itself costs.⁴ Employers assert that they ought to make these decisions. Government regulation is said to cause rising prices, job losses, and a declining standard of living. On the surface, this economic perspective appears quite sensible. Every activity does entail some risk. And risk reduction can be very expensive.

Nevertheless, workers — those most often injured and killed — tend to see things differently. Workers note that workplace injury is not a natural phenomenon that no one can control. Rather, the risks workers face reflect decisions employers make: decisions about what, when, where, and how goods and services are produced. As we saw in Chapter 1, employers make these decisions with the goal of maximizing profitability. In this way, injury is a cost imposed on workers by employers. And allowing employers to do this is a political choice by the state.

Workers also know that the most important consequence of health and safety risks is not economic, it is the injury and death of workers. Reducing injury, disease, and death — not maximizing cost-effectiveness — is the pre-eminent goal of occupational health and safety activities. That is not to say that workplace injuries don’t have economic consequences. Clearly they do. Injured workers cannot earn a living and thus lose their houses. Society must pay for medical treatment. Employers profit from dangerous work. But these economic outcomes are secondary effects — by-products of workers being exposed to the risk of injury and death by their employers.

The political perspective and the economic perspective on risk start with contradictory views about the nature of risk in the workplace. Employers see risk as natural; workers see it as imposed. Consequently, their prescriptions for reducing risk differ. How governments choose to regulate workplace injury reflects the respective abilities of workers and employers to influence public policy.

Market model of occupational health and safety

Provincial governments began regulating Canadian workplaces in the late nineteenth century. This intervention reflected growing concern about the effects of industrialization on workers and society — including the effects of workplace injuries. Before governments began regulating employment, workplace injury was the purview of the courts and the subject of the common law of negligence.⁵ Under this market model of safety, employers had to provide a safe workplace. Workers (theoretically) received higher wages for hazardous work. They could also sue their employers for workplace injuries. This created an incentive — albeit a weak one — for employers to operate safety.

Whether workers could actually get hazard pay is unclear. To demand hazard pay, workers need to know job risks before being hired. To compel hazard pay, workers need a means to survive unemployment for a period of time — perhaps a long time, in a loose labour market. Once hired, workers who found their jobs too hazardous faced significant costs if they changed employers. There was also no guarantee that any other job entailed less risk than their current one.⁶ For their part, employers may have preferred to pay higher wages if the cost was less than the cost of operating safely. This all suggests that getting hazard pay was unlikely.

Workers also had a hard time gaining compensation for injuries via the courts. The requirement to demonstrate employer negligence combined with the assumption of risk, contributory negligence, and fellow-worker doctrines meant few lawsuits were successful.⁷ Yet despite these barriers, workers still sought redress primarily by suing. Relying on the (unreliable) courts is hard to understand. This behaviour may reflect that a civil suit was one of the few socially legitimate ways injured workers could seek redress.⁸ The important point is that legal hurdles and the difficulty workers had in getting hazard pay created little incentive for employers to make workplaces safe.

Inevitability and the careless worker

Two inter-related narratives bolstered the market model: the careless worker and the inevitability of injuries. The notion of worker carelessness underlies the belief that some workers or groups of workers (often discussed in terms of ethnicity) are accident prone, careless, or even reckless.⁹ This idea remains important. For example, a 2005 study found that 76 percent of Canadian employers believed that most accidents and injuries are the result of worker carelessness or lack of attention.¹⁰ Similarly, the majority of Canadians broadly accept the idea that workplace injuries are inevitable and acceptable.¹¹

The careless worker narrative has a long pedigree. American companies used it in the 1920s to counter opposition to the introduction of leaded gasoline. Lead poisoning among workers making the tetraethyl lead additive made people leery of using leaded gasoline. General Motors, DuPont, and Standard Oil responded to critics, in part, by blaming injuries on workers not following safety precautions.¹² In this case, carelessness was not the root cause of worker injuries and death — exposing workers to a toxin at work was. Indeed, analysis of injury causation suggests that unsafe conditions, not carelessness, is the cause of most accidents.¹³

DuPont, Standard Oil, and General Motors combined the careless worker narrative with the assertion that innovation and economic progress demand risk. In effect, workplace injuries are inevitable and necessary. This argument radically (and bizarrely) reframes the debate about the cost of workplace injury. Workplace injury is not about the cost of injuries to workers. Instead, it is about the cost to society of not injuring workers! This neatly sidesteps the awkward fact that employers (and their investors) reap the economic benefits of these injuries while workers bear the costs.

Suggesting injuries are inevitable also deflects attention from the fact that workplace injuries are not random events that defy prediction. And they are not unpreventable. Patterns of injury are clearly discernable. In agriculture, for example, the most common injuries requiring hospitalization include fractures of the limbs, spine, and trunk, and open wounds on upper limbs. The most common injury mechanisms include animals, becoming entangled in a machine, falling from a height, being pinned or struck by a machine or another object, and falling from a machine.¹⁴ Anyone who has worked on a farm could tell you about these patterns.

Injury mechanisms are well known to employers, as are many ways to prevent injuries. The problem is that eliminating or containing hazards is expensive. It is cheaper and much easier to blame the victim.¹⁵ Focusing attention on the victim protects cherished beliefs or powerful actors. We do this all the time. Victims of sexual assault were (and are) often blamed for their injury. Blaming rape victims is easier than grappling with seemingly intractable issues such as the objectification and victimization of women by social and legal forces. Similarly, it is easier to blame workers than grapple with the idea that injuries are the by-product of employer decisions.

The social construction of accidents

Worker carelessness and injury inevitability are a recurring refrain in popular debate. They also make an important contribution to the social construction of a workplace accident. A social construction is an understanding about something that emerges over time based on the behaviour of various actors. In this case, it defines what an “accident” means and what response is appropriate. Such understandings become embedded in the institutional fabric of society. The resulting social reality makes it hard even to think seriously about alternatives.

The idea of a social construction is a bit hard to grasp, so consider how we measure time. There are 60 seconds in a minute, 60 minutes in an hour and 24 hours in a day. Extrapolating, we get 365 days in a year, unless the year is divisible by four, and then we have a leap year with one extra day. Mind you, if that leap year number is divisible by one hundred, then we don’t add the extra day. Unless the year is divisible by four hundred and then we do.

The point is that how we measure time is arbitrary (not to mention confusing). It is a social construction that reflects the historical evolution of time keeping. There is no real reason that we have a base-60 system for measuring time. A system based on tens would much simpler. But no one seriously considers a base-10 system because the base-60 system is embedded in the institutional fabric of society. We all have a base-60 watch, computers run on base-60 time, and so on.¹⁶ This same dynamic operates in how we socially construct workplace injuries. The idea that injuries are caused by “accidents” is embedded in the institutional fabric of society and makes it hard even to think seriously about alternatives.

Saying a workplace injury is the result of an “accident” implies a lack of intentionality. This terminology implicitly absolves employers of responsibility for an injury because they did not explicitly set out to injure a worker. This is not, however, the full picture. While the exact moment individual injuries occur can be difficult to predict, the circumstances in which injuries occur and mechanisms of injury are typically well known. In deciding how work is designed and performed, employers place workers in circumstances that routinely give rise to the injury in the pursuit of profit. Using the term “accident” obscures, and indeed legitimizes, this behaviour. Accidents happen, after all. Now get back to work.

Bizarrely, the concept of an “accident” is also used to support to the idea that employers should be able to manage safety. Employers know the most about work processes. And they appear to bear the financial costs of accidents.¹⁷ Thus, so the argument goes, employers are best positioned to prevent accidents. This line of thinking sidesteps two important points. First, injuries are by-products of employer decision-making: that is to say, employers already have the power to prevent injuries, but they don’t. And, second, the fact that employers don’t prevent injuries reflects the reality that the interests of workers (safety) and employers (profit) conflict. Not surprisingly, leaving safety to employers doesn’t usually work out very well for workers — they keep having these “accidents.” This was as evident in the late nineteenth century as it is today. And thus the state began experiencing and responding to pressure from workers to regulate the workplace directly.

Pressure for state regulation

Government regulation of employment is closely tied to the emergence of employment relations typical of a modern industrial society.¹⁸ The rapid industrialization of Europe and North America in the nineteenth and early twentieth centuries led to an increasing number of work-related accidents.¹⁹ For example, in 1925, the Workers’ Health Bureau noted that the introduction of spray painting meant that 18 workers could now spray-paint 1200 car chassis per day. Formerly, 20 workers could only hand paint 275 chassis. This increased efficiency came at a cost, though: every spray-painting worker was poisoned within a year of starting.²⁰

Industrialization also led to the emergence of an organized, self-conscious, and politically potent working class.²¹ It was also a time when there was growing interest in socialism as an alternative to capitalism.²² As a result, there was growing pressure for government to respond to the needs of injured workers and address the deteriorating credibility of capitalism and capitalists.²³ Subsequently, various forms of regulation were introduced that (partially) limited the employer’s right to manage as it saw fit.

Among these regulations were standards governing such matters as hours of work, wages, and child labour. Union membership and collective bargaining were also legalized.²⁴ Workers were not the only group demanding regulation of factories. Middle-class reformers sought state regulation as a way to maintain the sexual segregation and child educational goals they desired.²⁵

The Factory Acts

Ontario began regulating working conditions in 1874 and passed The Ontario Factories Act in 1884.²⁶ Upon coming into force in 1886, this Act regulated working conditions for women and children. It prohibited unsafe factories or factories where persons were likely to be permanently injured (although temporarily injuring workers was apparently okay). Three inspectors were hired to enforce the Act.²⁷ Enforcement was, however, limited. Inspectors did little to affect the employer’s right to manage.²⁸ Other jurisdictions followed suit.²⁹

It is unclear why inspectors chose persuasion over prosecution. One explanation is that persuasion was the most efficient use of limited resources — limited resources being a political choice by the state. Persuasion was also consistent with the notions of inevitability and worker carelessness.³⁰ Workers were given no role in occupational health and safety, reflecting their subordinate role in employment relationships.³¹

There is no evidence that early state regulation appreciably reduced workplace injury. While obviously a concern to workers, high rates of workplace injury may also have given employers pause for thought. The horrific nature of workplace injury and the injustice of its (lack of) compensation may cause workers to reflect on whether their interests are really the same as their employers’ interests.³² Workers might well conclude that their health and safety is being systematically sacrificed to maximize the profitability of employers. Such a conclusion is a powerful critique of the capitalist system, posing a significant threat to social stability.

Injury compensation

In the late nineteenth century, Western governments began altering how injuries were compensated. Among the first changes was Great Britain’s Employer’s Liability Act (1880) — an act that limited the use of the three common law defences regularly used by employers to avoid liability.³³ Britain enacted additional legislation in 1887, which made individual employers liable for accidents but did not require any system of insurance.³⁴ Between 1884 and 1886, the Bismarck government of Germany created the first system of compulsory, no-fault workers’ compensation insurance with liability borne collectively by employers.³⁵ Laws were also enacted in the United States³⁶ and New Zealand.³⁷

In Canada, workers’ concerns became more politically important during the early years of the twentieth century. Between 1900 and 1914, Canada saw rapid growth and a drift toward highly concentrated forms of corporate production.³⁸ This economic change, and the addition of over 2.2 million immigrants between 1903 and 1912, transformed the nature and position of class forces in Canadian society. It resulted in unprecedented confrontation on the shop floor and in the streets. Workers also found legislative voice with the election of labour candidates to seats in all levels of government.

Between 1902 and 1911, seven Canadian provinces instituted injury compensation reforms, although only Quebec implemented a collective liability model.³⁹ These changes began ameliorating one objectionable consequence of workplace injury: poverty caused by a legal system that was stacked against injured workers and their families. The widespread adoption of no-fault workers’ compensation is typically identified as beginning with Ontario’s 1914 legislation. While fully explained in Chapter 5, in brief, workers’ compensation developed to provide for lost earnings as well as medical and rehabilitative benefits to workers whose injuries arose out of and occurred in the course of employment. Who was at fault for the accident was deemed irrelevant. All employers paid premiums to cover the costs and workers gave up the right to separately sue their employer.

Why workers’ compensation?

While growing worker pressure was an important factor in the emergence of workers’ compensation, it was not the sole reason for this change.⁴⁰ It is important to be cognizant of the advantages workers’ compensation offered to employers, including liability protection and increased predictability in compensation costs. Further, there were societal shifts afoot. For example, studies demonstrating that structural factors, rather than specific acts of the worker or employer, were a significant cause of accidents.⁴¹ This undermined the perception that the law of negligence was an appropriate way to compensate injury.⁴²

Employer support may have made workers’ compensation attractive to governments seeking to ameliorate worker grievances.⁴³ William Meredith’s report that led to Ontario’s workers’ compensation legislation suggests this idea.⁴⁴ Meredith also used moral and political rationales that spoke to the stabilizing effect of no-fault workers’ compensation:

In these days of social and industrial unrest it is, in my judgment, of the gravest importance to the community that every proved injustice to any section or class resulting from bad or unfair laws should be promptly removed by the enactment of remedial legislation and I do not doubt that the country whose Legislature is quick to discern and prompt to remove injustice will enjoy, and that deservedly, the blessing of industrial peace and freedom from social unrest.⁴⁵

He further commented on the potential of workers’ compensation to mitigate worker demands and power in a speech to the Ontario Section of the Canadian Bar Association:

The Legislature should be careful to put upon the statute books a fair law, not to be influenced by the pressure of a strong body which wields a powerful influence to temporize with the matter, to give only half justice. There are some who think that the manufacturers of this country are pretty well taken care of, and it seems to me it is bad policy on the part of the manufacturers to antagonize the workmen at a time like this. There are sounds in the air of an attack upon their privileges, and I could not imagine a stronger weapon with which to attack than to say, “You protect the manufacturers but you will not protect the working man.”⁴⁶

Workers’ compensation ameliorated a significant source of social instability by providing stable, predictable, and immediate compensation. In doing so, workers’ compensation allowed governments to diffuse pressure for more aggressive regulation of occupational health and safety. In this way, workers’ compensation can be viewed as a substitute for injury prevention.

Partial self-regulation

Subsequent to the introduction of factory acts, many jurisdictions enacted specific legislation to address safety in shops, construction, and mines.⁴⁷ Responsibility for enforcement was normally assigned to the government department most closely associated with the area of commerce being regulated. Until the Second World War, worker demands for further changes in the workplace were limited by conflict between craft and industrial unions, state and employer repression, and the Great Depression.

During the Second World War, workers forced a significant accommodation from the state. PC 1003 required employers to recognize and bargain in good faith with trade unions.⁴⁸ The resulting framework of labour relations reinforced the rights of employers to manage. Consequently, worker demands focused on wages, benefits, and union security. Combined with a recession in the 1950s, this dynamic meant that workers did not make health and safety a bargaining priority.⁴⁹ Fewer than half of the provinces had an occupational health and safety program in place before 1970.⁵⁰

Beginning in the 1960s, workers across North America began agitating for better health and safety laws. Socially, there was increasing skepticism about the benevolence of employers and the state. In the workplace, occupational diseases took on new importance.⁵¹ And employers’ reluctance to share information about diseases or recognize them as work-related highlighted how the interest of employers and workers diverged and conflicted.⁵² The introduction of Medicare in 1968 also focused state attention on the cost of workplace injuries and illness.⁵³

Hoggs Hollow and Elliot Lake

Events at Hoggs Hollow and Elliot Lake, Ontario, catalyzed the Canadian occupational health and safety (OHS) movement during the 1960s and ‘70s. At Hoggs Hollow (now part of Toronto), five workers were killed constructing water mains in the soft soil beneath the Don River. The tunnel was 35 feet underground and 6 feet in diameter with a 36-inch water main running through it. To pass by one another, one worker was forced to curl into a ball beneath the pipe to make room. To keep the water and silt from entering, the employer pressurized the tunnels. On 18 March 1960, sparks from a blowtorch ignited a fire in the oxygen-rich environment.

In the mass confusion and panic that ensued, rescue workers shut down the compressors that forced air into the tunnel, causing much of the tunnel to cave in, and leaving the men to suffer the tortures of the bends as nitrogen bubbles expanded within their blood. To make matters worse, the floor of the tunnel was not properly sealed with cement, so that when water was finally poured into the tunnel to quell the fire, behind the water came a torrential flood of quicksand and muck.

For these five men, the dream of a better life died in a cramped, slimy tunnel beneath the Don River. The official cause of death was ruled acute poisoning by carbon monoxide and suffocation due to the inhalation of smoke, sand, and water. It took three days of digging to free the bodies of these men from the tunnel as they were completely buried in silt and trapped under the 36-inch water main that lined the tunnel. The bodies of the Mantella brothers were found kneeling beside each other in the posture of prayer.⁵⁴

The resulting coroner’s inquest and a strike by Italian construction workers sparked changes that contributed to new occupational health and safety laws in Ontario.

Hoggs Hollow was followed by events at Elliot Lake, Ontario, in 1974. Alarmed by the high incidence of lung cancer and silicosis, uranium miners struck over health and safety conditions. Worker health concerns dated back to 1958, when the union began pressuring the federal and provincial government to reduce worker exposure to silica dust and radiation. A 1973 study of the workforce found that 3.6 percent of workers had silicosis and 5.6 percent had a pre-silicotic condition.⁵⁵ An 18-day wildcat strike and questioning in the Ontario legislature from provincial New Democrats eventually led to the formation of Ontario’s Ham Commission, which recommended changes in health and safety laws.

The external responsibility system

As a result of political pressure, Canadian governments re-evaluated their approach to occupational health and safety during the 1970s.⁵⁶ Among the main changes were the establishment of single regulatory agencies, new legislation,⁵⁷ and increased worker involvement.⁵⁸ The external responsibility system created under this legislation explicitly adopted the economic perspective on risk commonly advocated by employers by limiting the obligations of employers to protect workers.

Saskatchewan, for example, requires employers to “ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers.”⁵⁹ Similar language can be found in other legislation.⁶⁰ The legislation does not require employers to protect workers from every hazard or risk. Rather, employers must do everything that is “reasonably practicable” to protect workers. While this is an improvement, it also suggests that legislators continue to view the risk of workplace injury as unavoidable and acceptable. The relatively low fines historically assessed against violators supports this assertion. If injury were viewed as unacceptable, legislators would have enacted much higher fines and directed more frequent prosecution on the principle (embedded in all of the acts) that increasing the cost of injury increases employer motivation to reduce injury.⁶¹

By the 1990s, the effect of the neo-liberal prescription on government policies was being seen in OHS.⁶² External regulation was de-emphasized, with fewer or lower quality inspections being conducted. Prosecutions also dropped off. Governments also began “partnerships” with industries, whereby employers could earn incentives (often rebates on workers’ compensation premiums) based on their accident records.⁶³ These new partnerships move workers and unions to the periphery of occupational health and safety regulation.⁶⁴

The internal responsibility system

New legislation in the 1970s also created three new worker health and safety rights. These included the right to know about workplace hazards, the right to participate in discussions about workplace health and safety, and the right to refuse unsafe work. These rights represented significant gains for workers. Among the reasons for emphasizing internal (i.e., firm-based) responsibility for health and safety is the state’s purported inability to regulate the large number of workplaces.⁶⁵ It is, however, more accurate to say that governments were not prepared to undertake such intensive regulatory work. This unwillingness reflects a reluctance to expend resources and interfere with employer management of the workplace — a long-standing feature in OHS. In this way, the economic perspective on risk underlies the internal responsibility system (IRS).

That said, the internal approach is also informed by a sense that workers have an important stake in occupational health and safety. Workers are made responsible for policing employer compliance with OHS standards. This is particularly important, as the number of workplace inspections has declined in many jurisdictions.⁶⁶ Joint health and safety committees (JHSCs) are designed to improve communication about health and safety within firms. Yet employers continue to control what, when, where, and how goods and services are produced — a power fettered only by a duty to consult with workers over safety matters. The conflicting nature of worker and employer interests is only partially recognized in IRSs.⁶⁷ In this way, state regulation has given way to partial self-regulation. This approach also pushed occupational health and safety issues out of the public spotlight by making them local workplace matters.

CANADA’S OHS SYSTEM TODAY

The history of injury prevention in Canada presented above clearly shows that the state and employers view the risk of workplace injury as inevitable, minimal, and acceptable. Governments have sought to limit the employer’s right to manage as little as possible. This section briefly outlines how governments presently regulate workplace injuries. This includes providing a clearer picture of the internal and external responsibility systems and how they interact. In Chapter 3, we’ll evaluate the effectiveness of this system in depth.

Duties and obligations

Each province and territory, as well as the federal government, has enacted laws addressing occupational health and safety. The precise form of the law (e.g., act, regulation, guideline, code) varies. That said, every jurisdiction sets out employer duties and responsibilities, powers of enforcement, gives workers the right to refuse unsafe work, and protects workers from reprisal for doing so.⁶⁸

Employers are made responsible for taking every reasonable precaution to ensure the safety of workers. This includes complying with statutory standards (e.g., providing fall protection), providing workers with adequate supervision, education, and training, ensuring equipment is properly maintained, and informing workers of potential hazards. Supervisors must ensure workers comply with legislative requirements, alert workers to hazards, and use safety equipment and devices. Workers, in turn, comply with the law, use safety equipment and devices, report hazards to their employer and report contraventions of the law to the government.

Health and safety standards

In addition to the basic rights and duties set out in legislation, governments establish standards addressing occupational hazards. These may address physical hazards. For example, Section 139 of Alberta’s Occupational Health and Safety Code normally requires employers to use a fall protection system if a worker may fall more than 3 metres or if there is an unusual possibility of injury if a worker falls less than 3 metres. Specific standards for working over water and the type of equipment are specified.

Other standards address chemical and biological agents. Exposure to these agents causes the majority of occupational diseases and many workplace injuries. These standards usually include exposure limits. Exposure limits are frequently set in terms of an exposure (e.g., 50 parts per million) over a period of time (e.g., two hours, eight hours, a lifetime).⁶⁹ These exposure limits are the level of exposure at which it is believed that nearly all workers may be exposed without adverse effect.

Hazardous materials also come with manufacturer-provided Material Safety Data Sheet (MSDS). The federal Workplace Hazardous Materials Information System (WHMIS) implemented in 1988 required standardized labelling and MSDSs.⁷⁰ The availability of MSDSs for over 400,000 products increases the ability of workers to know what they are handling. Worker training programs on handling hazardous materials supplement this information.

External responsibility system

All provinces and territories employ inspectors to visit worksites, investigate workplace injuries, and enforce OHS standards. Responsibility for enforcement may rest within government or be delegated to an agency, such as a workers’ compensation board (WCB). Canadian inspectors continue to focus on persuasion, rather than coercion. Inspectors may direct employers to remedy health and safety hazards via the issuance of an order. Inspectors may also recommend charges be laid against employers.⁷¹

In 2004, the federal Criminal Code was amended to allow prosecutors to bring charges against organizations and senior managers when there has been a serious breach of workplace safety standards. The first conviction occurred in March 2008 and imposed a penalty of $110,000 upon a Quebec company. To date, there has been no case law specifying the level of negligence required under the statute. Such charges can be laid in parallel with prosecutions under occupational health and safety legislation.

Some jurisdictions (e.g., Manitoba, British Columbia) have also experimented with allowing inspectors to issue tickets with fines attached to them. In Ontario, both employers and workers can be the subject of such tickets. Significant controversy attends this system, which appears to focus attention on the actions of individual workers and supervisors (indeed making them mostly responsible for workplace safety), rather than the decisions made by employers.⁷²

Internal system and the three rights

In the 1970s, the introduction of the IRSs devolved much responsibility for regulating compliance with OHS standards to workers. Workers have three rights under the IRS: the right to know about health and safety hazards in the workplace, the right to participate (typically by selecting representatives to a joint health and safety committee), and the right to refuse unsafe work.

The most significant of these rights is the right to refuse unsafe work. The right to refuse runs contrary to workers’ common law obligation to obey and the collective bargaining principle of “work now, grieve later.” This exception reflects the immediacy and potential harm that health and safety hazards represent to workers.⁷³

Official work refusals are relatively uncommon.⁷⁴ More typically, workers will quietly alter their work to avoid a hazard.⁷⁵Issues may also be raised in joint health and safety committees. These committees may be required by legislation or collective agreements. They typically comprise an equal number of worker and employer representatives and are charged with examining health and safety issues and recommending remedies.

Partnership model and incentives

During the late 1980s, the idea of state–employer partnerships as a way to improve safety gained currency. This idea is similar to the notion of underlying IRSs: employers and workers are in the best position to know and remediate workplace risks. Where state–employer partnerships differ from IRS is that workers are largely excluded from these partnerships — except as the target of educational campaigns.

For example, faced with rising compensation costs, the Government of Alberta issued a challenge to employers in 2002 to reduce workplace injuries by 40 percent within two years. Various government initiatives followed, including a system of incentives.⁷⁶ As part of the post-2002 injury reduction campaign, a Certificate of Recognition was linked to a 5 percent reduction in an employer’s WCB industry rate through the Partnership in Injury Reduction (PIR) program on top of the WCB’s own experience-rating system.⁷⁷

CONCLUSION

Over time, governments have addressed injury prevention in various ways. In seeking to reduce the incidence of workplace injuries, governments have avoided significantly curtailing the rights of employers to manage. But there have been significant gains for workers. There are rules around working conditions. Employers are obligated to identify and remediate hazards. Workers have the right to know, participate, and refuse. And injured workers can gain more predictable, stable, and immediate compensation.

Yet, despite these efforts, hundreds of thousands of Canadians continue to be injured each year. In Chapter 3, we will examine this apparent inconsistency in some depth. Among the issues we’ll consider is the degree to which conflict between maintaining production and social reproduction retards effective injury prevention. Also of interest is the degree to which regulation affects an employer’s ability to decide what is produced when, where, and how. The importance of the economic perspective on risk will also be highlighted. Of particular interest is how this perspective is used to justify prioritizing profitability over safety.