April 29, 2003 SOCIAL SERVICES COMMITTEE

The Committee met at 9:00 a.m. in the House of Assembly.

MADAM CHAIR (Kelly): Order, please!

I think we will get started. This morning, I would like to welcome to the

Estimates Committee the Department of Labour, the minister and his staff, and

all of the Committee.

We will start this morning by asking the Committee members to introduce

themselves.

MR. MANNING: Thank you, Madam Chair.

Fabian Manning, MHA for Placentia & St. Mary's.

MR. HEDDERSON: Tom Hedderson, MHA for Harbour Main-Whitbourne.

MS M. HODDER: Mary Hodder, MHA for Burin-Placentia West.

MR. BUTLER: Roland Butler, MHA for Port de Grave.

MADAM CHAIR: Mr. Minister, we will pass it over to you for your opening

remarks and the introduction of your officials.

MR. BARRETT: Thank you, Madam Chair.

I want to thank you for the opportunity to discuss the department's

Estimates for the year 2003-2004. Joining me today are the officials within the

department. To my immediate right is Joe O'Neill, Deputy Minister; to my

immediate left is Gerry Crocker, Director of Finance and General Operations.

Next to him is George Joyce, Assistant Deputy Minister of Labour Relations.

Behind me is Jackie Manuel, Director of Occupational Health and Safety. Kim

Dunphy is the Assistant Deputy Minister of that division but she is off sick

today. We have Gary Cake, who is the Executive Director of Policy &

Planning, right behind me.

For the 2003-2004 fiscal year, a gross budget in the amount of $8,646,200 is

included in the Estimates to cover the department's cost for labour relations,

labour standards, and workplace health and safety inspections and enforcement.

To offset a substantial portion of the costs, related revenue of $6,143,100 is

budgeted, which results in an estimated net current expenditure of $2,503,100.

There are four main program areas in this department: Executive and Support

Services, with a gross budget of $1,822,300; Labour Relations and Labour

Standards, with a gross budget of $1,802,800; Occupational Health and Safety,

with a gross budget of $4,320,900; and Workplace Health, Safety and Compensation

Review, with a gross budget of $700,200.

As indicated in the department's estimate fly-leaf, the Department of

Labour functions included: conciliation services; preventive mediation services;

labour standards investigations; administrative services for the Labour

Relations Board; services to monitor and improve workplace conditions;

administrative services for the Workplace, Health and Compensation Review

Division.

To meet this mandate, the department is projecting expenditures for the

2003-2004 fiscal year in the following budget categories: In operating salaries,

we have $2,564,100 to cover salary costs for forty-eight permanent positions

plus temporary and contractual positions, overtime, and other earning. In

general operating, we have $695,500, including: employee benefits; travel and

communications; supplies; purchased services; property, furnishings and

equipment for all activities except occupation health and safety inspections and

the workers' compensation review division.

In professional services, we have a total of $323,400. In grants, allowances

and assistance, we have $66,000. In Information Technology, we have $42,100 for

the executive and support services branch and the labour branch. Workplace,

Health and Safety, $4,955,100, which includes salaries for fifty-six permanent

positions, plus temporary and contractual positions, overtime and other

earnings.

Right now, my officials and I will entertain any questions that you may ask

on the details of the budget.

MADAM CHAIR: Mr. Manning, would you like to begin? We will open the

subheads and continue on through.

MR. MANNING: Okay, we are just going to flow right through?

MADAM CHAIR: Yes.

MR. MANNING: Thank you, Mr. Minister.

I just want to run over some budgetary figures first. I am going to start

with the Minister's Office, 1.1.01. It had a budgeted amount last year for

salaries of $214,400, which was revised to $261,700. Can you give us an

explanation on that, the increase of approximately $50,000 on salaries for your

own -

MR. BARRETT: What happened there is the changeover in the department in

terms of the staff. The people were higher on pay scales, and that sort of

stuff, so there were some revisions on that.

MR. MANNING: So that would allow for a $50,000 increase?

MR. BARRETT: Close to it, plus the salary increases.

MR. MANNING: Following right through on Executive Support, 1.2.01.0l.

Salaries, we see an increase from $427,000 to $458,000 and an estimated budget

this year of $494,000. Can you give us some explanation on that one?

MR. BARRETT: Executive Support?

MR. MANNING: In Executive Support, 1.2.01.

MR. BARRETT: Yes, Gerry can respond to that.

MR. CROCKER: Under Executive Support, yes, there is a revised variance

there of $31,200. That is because the planned savings that was budgeted was not

achieved. For the change in the budget for the 2003-2004 fiscal year, the

$67,000 includes salary increases plus, this year, there are no planned savings

budgeted under Executive Support.

MR. MANNING: In Purchased Services, under Executive Support, it was

budgeted at $13,600, went up to $34,000, and we are back this year to an

estimate of $13,600. Would somebody explain that?

MR. CROCKER: Yes, the advertising promotional costs were greater so we

spent an additional $20,000 this year. We are back to the base budget of $13,600

for the next fiscal year.

MR. MANNING: You are not anticipating the same amount this year?

MR. CROCKER: No, I guess we will deal with the variances as they occur,

if necessary.

MR. BARRETT: Some of that was because we had major changes in the minimum

wage and that sort of thing. There was a lot of promotion and advertising last

year that we will not have this year.

MR. MANNING: Under Administration and Planning, 1.2.02.06., Purchased

Services went from $246,700, increased to $275,200, and we are back this year to

the original budget of last year, $246,700.

MR. CROCKER: That is also for increased costs with regard to advertising

and printing. We are back to the base budget of $246,700 for next year.

MR. MANNING: So this advertising and printing has to do with the minimum

wage also, or just different programs of the department?

MR. CROCKER: It would have been a number of different advertisements that

would have reflected that. Some of it may also have to do with the recruitment

of various positions that were being done at the time.

MR. MANNING: Within the department?

MR. CROCKER: Yes.

MR. MANNING: Under subhead 2.1.02.03., Labour Relations Board,

Transportation and Communications, it was budgeted last year at $34,200,

increased to $66,200, and estimated this year at $34,200, an increase of $32,000

last year.

MR. CROCKER: As a result of the volume of hearings by the Labour

Relations Board there was increased travel cost there to $32,000.

MR. MANNING: Under subhead 3.1.01., Occupational Health and Safety

Inspections, you had a budgeted amount of $2,825,600; you came in with a revised

budget of $1,933,200 which is a significant decrease, and this year we are

estimated at $2,957,700. Could you explain that one please?

MR. CROCKER: Under Occupational Health and Safety there was $1.3 million

approved last year for additional positions and related operating costs.

Unfortunately, the number of positions that were filled - well, actually we did

not fill a lot of the positions last year which affected the overall budget

because the travel costs, supplies, purchased service, everything was down

significantly, but there were fifteen positions that are due to be filled. I

think there are about five that have been filled and there are a number of other

offers that are out there, so we are expecting to fill most of those shortly.

MR. MANNING: These are inspectors -

MR. CROCKER: Yes.

MR. MANNING: That is what would allow for - just follow on down in the

same Transportation and Communications and Professional Services, and we see a

significant decrease. That would be for the same reason, I guess.

MR. CROCKER: Yes, basically it is the same thing, except Professional

Services. There, we would allocate an amount to hire experts for investigating

accidents and that type of thing. The number of accident investigations was down

last year so we only spent about $50,000 in that area.

MR. MANNING: On Information Technology, 3.1.01.12., it was budgeted at

$94,000, revised at $133,000, and this year we have an estimate of $61,000. I am

just rounding off the figures here, Information Technology, under Occupational

Health and Safety Inspections.

MR. CROCKER: Last year we had funding budgeted for the central inspection

system and also for some additional infrastructure upgrades. This year,

basically the same items are budgeted, it is just that it is reduced funding.

The infrastructure upgrades are down significantly from $77,000 down to $33,000.

Most of our purchases of our hardware have been done in the 2002-2003 fiscal

year.

MR. MANNING: Under 4.1.01., Workplace Health, Safety and Compensation

Review, Salaries, the budgeted amount is $252,900, revised to $279,500, and

estimated this year $301,700.

MR. CROCKER: There were some additional temporary assistants hired to

handle the number of appeals, and that is the variance there around $26,000 on

the revised. For next year there is a variance of about $48,000 and that is to

provide some additional assistants in that area, and salary increases.

MR. MANNING: Just down below that, Professional Services, it was budgeted

last year at $374,000, it was revised to $240,000. What would be the reason for

that?

MR. CROCKER: That is the adjudication fees. It is directly related to the

number of appeals. Last year we had the $374,000 because we anticipated a

certain number of appeals, but there were less than what we anticipated so we

only spent $240,000. Next year we are not anticipating quite as many as the

$374,000, but we have $293,000 in there to cover appeals.

MR. MANNING: About how many appeals are carried out for the year?

MR. CROCKER: Approximately 500 cases.

MR. MANNING: Do you have any idea with regard to what are successful

appeals and what are not?

MR. CROCKER: Somewhere in the area of about 17 per cent, 18 per cent,

seems to -

MR. MANNING: Success?

MR. CROCKER: Yes. We could double-check that for you.

MR. MANNING: It was 17 per cent to 18 per cent, you said?

MR. CROCKER: Yes, I think so.

MR. MANNING: I would like to step back for a second, if I could, to the

fifteen positions. You say five are in place now? Five have been hired for these

fifteen inspectors? Do these all have the same job description?

MS MANUEL: I can answer those questions for you. Of the fifteen positions

that were created, there were two management positions in St. John's because

of the increase in staff. There were six senior officer positions, and each

would have responsibility for a particular industry sector; there was an

ergonomist; there was a hazardous materials officer, and there were a number of

clerical and support positions that were created throughout the Province.

MR. MANNING: When do you hope to see the other ten positions filled?

MS MANUEL: The majority of the positions that are not filled are the six

senior officer positions. The two management positions: one, an offer has been

made; one, an offer is pending. Once we fill the management positions we will be

proceeding to fill the remaining officer positions. I would expect that by the

end of June we will have all of those positions filled.

MR. MANNING: A few years ago there was a fair amount of discussion about

the Province. Has there been any effort put into increasing the amount of

department in regard to making these government building more so? I know there

are a lot of private buildings out there, but in regard to making them

accessible.

MR. BARRETT: Madam Chair, that would be under Government Services and

Lands.

MR. MANNING: Government Services and Lands, okay.

In regard to the minimum wage, I realize over the past while we have seen two

increases. As always, there are people out there who are living on minimum wage

who are always wondering about the next increase. I was just wondering, has

there been any thought given to - the last two increases were done, I think, six

months apart, if memory serves me correctly. Has any thought been given by

government, to your department, in relation to another increase at any time in

the future?

MR. BARRETT: There is an annual stakeholders conference that will take

place and that is where that discussion would take place. Before, we had the

employers' council, labour, and all of that. We all came together and that is

where the recommendations came out of, in terms of a review. That is where that

discussion would take place.

MR. MANNING: One last question before I pass it along to my colleague

here. Is there anybody on contract within your department now?

MS MANUEL: At the present time we have two industrial hygienists in

contractual positions, and our mines inspection engineer is a contractual

position as well.

MR. MANNING: Okay.

I am going to pass for now to my colleague, but I reserve the right to come

back.

MR. O'NEILL: With regard to the contractual positions, Mr. Kelsey, the

mining engineer, has actually been with the department for some time. We

employed him, basically, on a contractual position because they are very

difficult positions to find. The same thing with the hygienist, the two

hygienists we just found. We actually do a national competition to try and find

those types of positions. It is very hard to fill the positions.

MR. MANNING: Thanks.

MR. HEDDERSON: I am just looking now through your annual report of

2001-2002. One of the feedback complaints that I get is that, with regard to

occupational health and safety and safe workplaces, the department is more

reactive than proactive. I just want to pursue that to get some sense of what is

going on.

On page 9 of Safe Workplaces, for example, Workplace Inspections, in

2000-2001, there were 2,261 and dropped off to 2,057 in 2001-2002, so there is a

difference. First of all, with regard to the workplace inspection, is that done

through - just a breakdown of the request. Is it coming in from workplaces, a

follow-up, or is it the department that goes out and does these? Who generates

the demand?

MS MANUEL: There are any number of reasons that an occupational health

and safety officer could end up into a workplace. It could be because there has

been an accident or a complaint, which tend to be client generated assignments.

As well, each officer is assigned a geographic area for which he or she is

responsible, and they conduct random, unannounced, unscheduled inspections

throughout the year.

What you need to appreciate, I guess, if you look at purely the numbers, is

that one inspection could take anywhere from an hour, several hours, to a week.

So to look at the numbers and say that 2,261 versus 2,057, in some cases you are

not comparing apples to apples. In terms of the officers being reactive, that is

certainly a portion of our activity but we also do quite a number of proactive

inspections.

MR. HEDDERSON: Just to pursue that, then, if you are looking at going

into workplaces, who determines which ones you go into? You said it is random,

so is it possible, let's say, over a five year period, that every workplace in

this Province is going to done, or would it take a ten year period, or would it

be possible for a workplace not even to be hit over any period of time?

MS MANUEL: What we look at in terms of where we conduct our inspections,

it is based on risk. It is based on the activity, the history of the employer.

We have actually identified approximately 200 employers, based on worker

compensation statistics, that account for a considerable portion of the

accidents that are occurring in the Province. It is in those workplaces that we

focus some of our attention, but also not necessarily. If a workplace is not

having accidents, it does not necessarily mean that the hazards have not

existed. It means that the employer is doing a good job, but we would also,

based on our knowledge of industries and the hazards that exist in those

industries, conduct inspections of those employers as well.

MR. HEDDERSON: With regard to workplaces, there are workplaces that have

never had an inspection, is what you are saying.

MS MANUEL: Yes.

MR. HEDDERSON: Schools, for example, when you look back over the last

couple of years, there has been a lot of discussion about environment. Let's

just take air quality, for example. Has your department gone into any schools

under those circumstances and inspected the schools, for example, just as a

group?

MS MANUEL: We have conducted inspections in schools. Generally, issues

concerning air quality are handled through the respective boards and the

Department of Education. I guess the rationale being that the standards that we

would enforce for workplaces are intended to apply to healthy adult workers, so

it would not be appropriate for children.

MR. HEDDERSON: So, Jackie, what you are saying is that would have to come

from a request from some of the working groups that are in a schools, be it

student assistants or teachers or caretakers or whatever.

MS MANUEL: Possibly, and we do receive concerns identified through people

other than the workplace parties, and whether that is handled through a

referral, every concern brought forward is certainly identified and addressed.

MR. HEDDERSON: Thank you.

Again, just following along, another area that has come to my attention,

Minister, is that there was great concern with regard to the legislation that

was coming forth on overtime and whatever. I know it was put off and I am just

trying to get a sense of, first of all, the reason that it was put off. Was it

financial, was it not the time to do it, or was there a reconsideration or

review?

With regard to your direction for this year, where is that going?

MR. BARRETT: As you are well aware, the whole issue in terms of the

overtime and other issues was decided by and done jointly with the employers and

labour, so it was a whole process in terms of a review of all the labour

standards.

I guess the employers' group had agreed that this overtime regulation would

come in, but I guess - I do not know - they had not done their proper

consultation with all the groups involved, but when it got close to the actual

implementation date there were all kinds of ramifications in terms of what would

happen. In addition to that, we did get a lot of requests from employees because

there are special circumstances where the employees would have been - like in a

fish plant, for example, where you would be processing crab or shrimp and it

would have been a seven or eight week operation. Normally, these employees would

have been working probably eighty, ninety hours a week but they would only work

that for eight or nine weeks. Some of them were marginal businesses, fish

plants, and if we had brought it in, the employees would have been cut back to

forty hours a week. At seven weeks or eight weeks of work, they would have only

gotten 280 hours worked and they would not have qualified for EI.

There were some special circumstances that applied to certain specific

industries, so what we have agreed to do is to review and now each group will

make their submission in terms of what they think is unique about their

particular industry and if there should be any exemptions. That process is going

on right now. We are hoping that shortly, within a month or so, we will be able

to implement the overtime provision.

MR. HEDDERSON: Okay, so what you are saying is that the consultation will

take place within the next - the time frame again, Minister?

MR. BARRETT: Well, it is ongoing right now and each industry is coming in

with their specific cases. We are reviewing each particular case. I know in

other provinces, in some industries, they have - in the same way in terms of, I

guess, a construction project, you are in a remote area and the employer is

going to say: Well, I will hire more workers. But if you are up in some remote

area, forty hours a week, when normally these construction companies who go to

these remote areas probably work seven days a week, whenever there is daylight,

but they are only there for three or four months. The employers may cut them

back to forty hours a week. These are some of the complaints that we have had

from the employees. I guess we will be looking at what would be special

provisions of it.

MR. HEDDERSON: Okay.

To get back to the workplace, I am just referring to page 10 in the report.

MR. BARRETT: The annual report?

MR. HEDDERSON: Yes.

MR. BARRETT: Okay.

MR. HEDDERSON: I am just trying to get a sense, Minister, of the

direction that you are going in with regard to allocating the funds for

whichever particular direction, I guess, you are going.

Workplace fatalities, can you give me a sense of where we are with that in

the sense of workplace fatalities and injuries going down, remaining, or going

up?

MR. BARRETT: Yes. There were less this year than last year.

MR. HEDDERSON: To what degree?

MR. BARRETT: We had twenty-three last year.

WITNESS: (Inaudible).

MR. BARRETT: Yes, two and eleven, and the year before that it was

twenty-three.

MR. HEDDERSON: With regard to these workplace fatalities, again, are they

associated with any particular - I am just going back to what Jackie was talking

about, about inspections and that sort of thing. With regard to the fatalities,

are they associated with any particular industry, workplace, or is it just -

MR. BARRETT: Jackie can probably answer that.

MS MANUEL: Over the last year, if you look at the fatalities, by and

large we see them more so in industrial industries - for example, construction -

however, there were a number that were as a result of industrial disease, so

these were occurrences or injuries that occurred many years ago. Overall, I

think, if you look back over the last number of years, you see a large portion

of them in the construction industry. I think, if you compare that to our

inspection activity, you would also see a proportionate amount of enforcement

activity is spent in the construction industry because of the hazards in that

industry.

WITNESS: I would imagine the fishing industry (inaudible).

MS MANUEL: Yes.

MR. HEDDERSON: Yes, it would be a big part of it.

The term, creative sentencing, is there. I cannot help but ask. Obviously, it

is kind of innovative in the sense of, I guess, not only in way of punishment

but in way of education and expanding (inaudible). Could one of you just give me

a sense of -

MR. BARRETT: I will let Jackie do her creative thing.

MS MANUEL: The creative sentencing provisions were added to the act in

December of 1999. What that allows is a provincial court judge, upon conviction,

to levy a punishment over and above a dollar amount. We have used the creative

sentencing provisions in many cases where a large financial penalty really would

not be seen as punitive or really would not make any sense.

For example, charges were laid against the Town of St. Anthony as a result of

a fatality. If the court levied a large fine on the town - a fatality - at the

end of the day it is the taxpayers of the town that would have to pay that fine.

So there were provisions added to ensure that public education programs were put

in place, that training programs were offered free of charge. In that particular

case, there were approximately sixty people who attended a two-day training

program for free, who now have a far greater likelihood of ever being injured,

or a far lesser likelihood of ever being injured on the job. So it is a way to

take from something terrible and benefit the workers and our communities in this

Province.

MR. HEDDERSON: Again, that is what I was getting at. Of course, the

complaints often come back, Jackie, the same as in the justice system, a slap on

the wrist sort of thing, some community stuff and whatever. Again, what kind of

feedback has come back to you in that sense?

MS MANUEL: The feedback that we have received particularly in the cases

that we have had - and there have been very few to date because this is a fairly

new thing - from the families of the injured workers is very positive. They know

that no large fine, no punishment, is going to bring their loved ones back, but

if anything can be done to prevent another family from having to go through what

they have gone through, they are totally and absolutely supportive of it.

Keep in mind that the court still has the ability to levy a large fine when

it is appropriate and when it would be a deterrent, but there are other things

that employers may learn a larger lesson from, whether that be public awareness

and those kinds of things. There are few other provinces in the country that

have the same provisions and utilize them on a regular basis. The feedback that

we have received has been very, very positive.

MR. HEDDERSON: The young workers safety program, obviously there is a

whole list of things there that you are looking at, to try and promote, I guess,

safety, in the workplace especially for young workers. What kind of success have

you had with that particular program?

MS MANUEL: Success in terms of ?

MR. HEDDERSON: Basically, how many of our young workers are availing of

these types of programs? Have you gone into the high schools, for example? I

know there is a course being offered in the high school. Do you have any

part in

that? Are you tracking the young workers in a sense of when they come out of

high school, post-secondary or whatever, do they have to have certification?

Again, I am just trying to get a general sense of where you are going and, of

course, the dollars that you are putting towards it, because I consider that to

be a very important program.

MS MANUEL: Some of the initiatives that are underway and have been

underway for young workers, including the Workplace Safety 3220 in the high

school programs, our officers do regularly visit the classrooms and conduct

presentations. In addition, there is the young worker orientation program that

the department participates in through the employers' council. It is free of

charge. It is an information session for young workers. In terms of what dollar

amounts are being provided, most of the service that the department provides is

in kind in terms of having our enforcement staff available to speak to young

workers, or through organizations like the Newfoundland and Labrador Safety

Council that have young worker conferences and so on.

MR. HEDDERSON: So, it is not anywhere near mandatory, Jackie, in the

sense of making sure that all of our young workers who are coming out have some

exposure to this. It is still just open to, I guess, the availability. For

example, how many schools offer that program? I do not think it is mandatory.

MS MANUEL: No, it is no mandatory. The course itself is offered in every

school district in the Province, not necessarily every school. There is no

course in this Province that every student has to take. We have certainly had

those discussions.

In terms of training being mandatory, it is mandatory in a sense that it is

mandatory for everybody. All employers must ensure that their workers are

trained and aware of the hazards that will be met by them in the workplace, but

to say that there is a single program that is required for young workers, no,

there is not.

MR. HEDDERSON: You did a video on the Invest in Tomorrow, Be Safe

Today . Again, when was this done, the cost of it, and has it been

distributed to, I guess, all the high schools?

MS MANUEL: The video was done - I am just trying to think - last summer?

The summer before last, totally with young workers. Actually, we hired a number

of summer students and they had some general guidance and direction from the

department staff, but basically produced it, wrote it, recorded it. It was their

message. They travelled, actually, throughout the Province talking to injured

workers. It is available. We give it out at any venue that we have the

opportunity, particularly where young workers are available. I know we gave out

hundreds of them at the youth conference last year.

MR. HEDDERSON: On page 19, under the outlook for 2002-2003, which is the

current year, again there was a Labour Standards Forum to be held in the fall of

2002, so I assume that has gone through. Basically, what came out of that? Is

there any direction for the future?

MR. JOYCE: Yes, in 2002 we had our annual course Labour Standards Forum.

In 2002, it was attended by about thirty participants, fifteen from the business

community and approximately fifteen from labour organizations. At that time, in

light of the fact that in the previous year, 2001, there was a comprehensive

package of changes to the Labour Standards Act, what we anticipated and what

indeed happened was to have some discussion on the implementation, if there were

any issues arising from implementation of the major package of amendments that,

in fact, came into effect on July 1, and there were some issues identified that

will require follow-up. I think there were about four or five issues that will

require follow-up, and we are currently doing some more analysis and research

for the parties, for the stakeholders, to ensure that the labour standards

legislation is current in the workplace.

MR. HEDDERSON: George, what would be the four or five issues?

MR. JOYCE: Well, for example, one issue would be - Gary, you can help me

out here because you were a participant in that. The act has been in place for

about thirty years. There is a

section there in the beginning that states there

are a number of professions that are exempted from the act; for example,

architecture, engineering. Those professions, as I have indicated, were

identified in the act about twenty-five to thirty years ago. The occupations in

the workforce today have changed to the extent that it does not accurately

reflect what exactly should be in the act, and what should be out of the act.

For example, in the engineering field now, professional engineers are exempted

from the act. There is a myriad of spinoff occupations from engineering that the

parties have agreed to conduct a review to ensure they are all captured under

the act. We are having some cross-country checkup on that now, and we are going

to report back to the parties on it.

Another one, for example, would be: the parties indicated at the forum that

it may be timely, in this Province, to deal with a long-term solution to the

minimum wage issue. Instead of, for example, the minimum wage being implemented

every couple of years, twenty-five cents or fifty cents, what business has said,

and the labour organizations have agreed, is: Let's take a long-term approach

to this. They have asked for some research in that area, which we are currently

conducting, and we will hopefully have it on the agenda for the next fall round

table which is September or October 2003.

MR. HEDDERSON: George, with regard to your research and that, do you do

that internally or is it contracted out?

MR. JOYCE: We do it internally, our program and policy area, research

area. We have a couple of statisticians and researchers and some labour

standards officers who are knowledgeable in the field, our director, and we have

a labour standards officer who will help in that regard, in doing some research

for us, but it is done in-house.

MR. HEDDERSON: Minister, you are putting out a pamphlet this year,

2002-2003, it says here: a

summary pamphlet to advise employers and employees

about changes in the Labour Standards Act. Is that ready to go or will that be

contingent now on what we talked about before about the overtime issue, or is

that just put on hold now?

MR. O'NEILL: When the changes were made to the labour standards

legislation last year we developed a pamphlet called, A Guide to the Labour

Standards Act. We actually launched that about mid-year, last year, in June. It

basically outlined in layman terms the changes that were coming to the labour

standards legislation. It got wide distribution.

As more changes are made, of course, we will continue to update the pamphlet.

We got some pretty good feedback on the pamphlet, that it was very user

friendly, it was an easy read. One of the things we are also looking at, as

well, is enlarging that pamphlet to cover the entire legislation to make it

easier for employees and employers to understand.

MR. HEDDERSON: With regard to the workers' compensation commission -

the review division is what I am looking for. This is the review division of

(inaudible). The statistical overview, page 9 and 10, and the caseloads. I am

just looking at the hearings there.

MR. BARRETT: Page 9 and page 10?

MR. HEDDERSON: Yes. The caseload and the hearings. I am just curious

about the hearings. Obviously, I suppose, the number of hearings follow the

population because it is top heavy on the East Coast, Corner Brook, Grand Falls

and Gander. Is there any significance there? I know there are 300 cases. It

reflects the demographics is what I am saying. There is provision, obviously,

for these hearings to be held throughout. It is the choice of the workers, I

assume.

MR. BARRETT: Most of the hearings, as you indicated, took place in St.

John's. Even people who sometimes live a fair distance from St. John's, they

opt still to have their hearing in St. John's. It may be more convenient for

the people who are involved.

As you know, a lot of these hearings in rural Newfoundland are represented by

Members of the House of Assembly. I think for most of us who represent districts

in rural Newfoundland, our people do not hire lawyers, they hire their MHA to do

the hearings.

MR. HEDDERSON: Yes, I am very much aware of that one.

MR. BARRETT: Particularly rural Newfoundland, MHAs should be part of the

legal law society because we all, over a period of time, have done a lot of

representation of people and sometimes it is more convenient that they be done

in St. John's than Corner Brook or Grand Falls.

MR. BARRETT: Yes.

MR. HEDDERSON: I just wanted to comment on that.

With regard to the caseloads, and again I am just looking at a couple of

different things. One is that they were just looking at the two years from

2001-2002. There were more appeals, I guess, pending, fifty plus - well, fifty

really - then the previous year. The new applications have gone down. Again, any

explanation for that? You still have the same number of people hearing the

cases, so is there any particular reason why or is that just a little bubble in

the whole scheme of things?

MR. BARRETT: You indicated that they have gone down?

MR. HEDDERSON: Well, there are more appeals pending, carried forward from

the previous year in 2002. So there are fifty more appeals carried forward and

when I look at the new applications, that has gone down. Just look at the

appeals brought forward, any particular reason why fifty would be pending or

carried forward from the previous year?

MR. BARRETT: What we try to do now is that the appeals have to be heard

within sixty days. The Appeal Division is doing its upmost to conform to that.

MR. HEDDERSON: In 2001, at the end of the year there were 100 brought

forward to the next year. In 2002 there were 155 brought forward, so that is

fifty more. Is there any significance to that or it just happens to be -

MR. BARRETT: The last time I checked on this is that they are really

proceeding and they are on

schedule with it.

MR. HEDDERSON: Okay, because the same number of commissioners are there.

MR. BARRETT: Yes.

MR. HEDDERSON: Right, so that has not changed?

MR. BARRETT: No.

MR. HEDDERSON: The new applications went down from 646 to 483. Again, any

significance there or is that just a bubble?

MR. BARRETT: Which page are you on now, page 10?

MR. HEDDERSON: Page 9, new applications. In 2001 there were 646 new

applications and in 2002 there were 483. That is a significant drop of over 100.

MR. BARRETT: It is hard to determine that. The number of applications is

determined by the number of people who are turned down by the commission. There

are all kinds of different factors for that. There are probably less injuries.

Our case of injuries are going down too, as you know.

MR. HEDDERSON: Yes, that is what I was trying to get a sense of, because

we have had changes in the workers' compensation. I am just wondering if,

through your tracking, have you found that 110 cases or 20 cases? Is that a

result of some changes we have put into the process that they are not getting to

the review right now? That is just the sense that I wanted to try and get.

MR. BARRETT: Well, the great work of the Occupational Health and Safety

Division indicates that our injuries are going down in the workplace. If the

injuries are going down then you have a ripple effect in terms of the number of

cases going to workers' compensation and I guess the number of cases that are

turned down and need to go to appeal. So it is going to have a domino effect in

terms of all of this.

MR. HEDDERSON: Okay, I will leave it at that and pass it along.

Did you want to respond? Sorry, I did not mean to cut you off, Joe.

MR. O'NEILL: Yes, you are absolutely right. With the significant

changes that were made at the Workplace Health, Safety and Compensation

Commission, we are now beginning to see some very positive indicators, very

positive trends; particularly in the area of soft tissue which, as you know, is

a big issue for workers' compensation and for injured workers.

I think the worker's compensation report will show that 2002 injuries over

2001 injuries will see a reduction of probably in the area of 800 to 900. Maybe

even higher than it, which is a significant reduction. A lot of that has to do

with the commitment of - as you know, when we did Changing the Mindset, we

brought in business and labour to work with the commission and the department to

start to reduce injuries. So we are seeing a very big reduction in injuries. The

early and safe return to work is certainly taking hold. It is resulting in

injured workers being helped back into the workplace, certainly a lot faster

than they used to be at the commission. I think all of those factors culminating

to what we are beginning to see as a very positive trend and we hope to

continue.

MR. HEDDERSON: First of all, are those statistics available? Has the

tracking been done? Obviously, internally it has been done because you are

looking at the drop. What I was getting at is that there are less cases coming

forward to the review commission. Is it because of less cases coming to the

commission in general, or they have been dealt with in a more timely manner and

not coming forward in the review? Where can I get that type of information? Are

there statistics published on a yearly basis or -

MR. O'NEILL: The commission's annual report, which actually has to be

submitted by June 1, will contain the statistics with regard to workplace

injuries and cases that are before the commission and that sort of thing.

MR. HEDDERSON: Because if you budgeted from last year to this year for

600 cases and there are only 400 coming forward, I am wondering again, is this

going to translate into less business for our review commissioners?

MR. O'NEILL: It certainly should. I mean as the cases reduce at the

commission then there should be less of a need for cases to be appealed at the

workers' compensation review division. As a result of that, we will eventually

begin to see a drop in their requests for decisions to be (inaudible).

MR. HEDDERSON: Yes, but obviously that is not reflected in your budget

this year because you have the same amount right, but it may transfer over the

next year or so?

MR. O'NEILL: We are into year two now of Changing the Mindset and we

are beginning to see - early indicators, you have to watch them, as you know.

You really need to see a four or five year trend. The actuary at the commission

is kind of giving us - and you know what actuaries are like, they are very

cautious. They are giving us cautious optimism that we are headed in the right

direction; but we need to look at it kind of on a five-year plan.

MR. HEDDERSON: Thank you.

MR. ROSS WISEMAN: Thank you.

Just a few questions, Madam Chair. I think my colleague did the figures in

the Estimates pretty clearly. Just a couple of questions, minister, around the

Workplace Health, and Safety Commission. I guess one of them stems from the

point you raised a moment ago about the role of MHAs because that is a

significant issue.

Have you given some consideration to expanding the role of the workers

advisors in the Province to be able to provide greater assistance with workers

in the appeal process?

MR. BARRETT: No. You mean the workers advisor position that we -

MR. ROSS WISEMAN: Those positions that are established. The employers

have an advisor - there are two of each isn't there? There are two workers

advisors and two employee advisors. Now the employer advisors are with the

Federation of Labour or housed at the Federation of Labour.

MR. BARRETT: While we would be willing, I guess, to do it - but I do not

know, over the years I have had just about fourteen years at it myself,

personally, in terms of workers' compensation and I think the MHAs do a

fantastic job. The MHAs who appear before the workers' compensation review

division do a tremendous job in presenting the cases of the constituents, so I

do not know if the clients would want give up their MHAs doing it. I think they

do a tremendous job, so I guess there is no reason why they could not.

MR. ROSS WISEMAN: The reason I raised that question is -

MR. BARRETT: If you want to refer your constituent to this group, you

could have them represent your constituent, but I guess that would be a decision

for you.

MR. ROSS WISEMAN: Just on that particular point, the reason I raised the

question is that, in this past year-and-a-half - I had never noticed as many of

them, actually, before. You are right, a lot of MHAs do an exceptionally good

job. Some are not as comfortable with it as others, and understandably so. There

is a fair bit of regulation you need to understand. If you are going to do it

justice, you need to fully understand the legislation and you need to understand

the implications of that.

In the last year-and-a-half I have noticed a significant increase in the

number of times the commission will ask for a reconsideration of the review

division's decision, and that historically has not happened very much. There

is always a strong legal argument made for the reasoning behind that. So,

obviously, the commission has to make a request for consideration on the basis

of some legal

interpretation of the decision and the reasoning of the decision

as being not founded based on the legislation.

What I have found is that some of these requests for reconsideration are two

or three page documents that are written by legal counsel and the merits of

their argument are founded in law and referenced to case law. When you start

getting into that level - and that is happening, as I said, more frequently in

the last year-and-a-half - and when you start getting into that area, not all

MHAs are as equipped to do it as others. When you consider that, as I had always

understood it at least, the appeal process was intended to be very informal. You

do not have issues around procedures. You do not have issues around rules of

evidence that you would consider in a traditional kind of process. It was

intended to allow the average person to come in off the street and really

represent themselves if they wanted to.

When you start getting into an area where now the commission is now involving

legal counsel more frequently in their appeal process, and a lot of these

reconsideration of decisions are starting to appear, if you are not a person who

has some legal background, it puts you in more of a disadvantage in representing

constituents. I am just referring as an MHA, but there are many people out

there. If you were to talk to the Chief Review Commissioner about the people who

appear before that review division today versus what it was in the early

nineties, I had some personal experience because I was on the former appeal

board that existed prior to the current structure and generally you had people

coming in off the street. Very seldom would you have a lawyer coming in and

representing them.

Now what you are finding is that they are more and more out of necessity.

Lawyers are starting to get more involved in the appeal process, and for those

who have the advantage of being in a position where they can access legal aid,

they will have legal representation; but there are those that their income

threshold is such that they are not eligible for legal aid, but their income

level is such that they cannot afford to go out and pay a lawyer either.

When you are entering into that area of debate, and making an argument on the

basis of legal considerations, there is a significant injustice gets done to

some individuals when they come in and try to represent themselves. To be frank

and honest, there have been many times I have felt - and I would consider myself

to be someone who, as an MHA, probably has had more experience at workers'

compensation related issues than many others - somewhat inadequate and

incompetent in being able to represent the interests of the constituents, and I

frequently found myself, through some personal favours, getting legal advice on

a claim, on a file, to help me present. If that is the direction in which we are

moving, I think the workers in the system who find themselves not able to afford

legal counsel will be somewhat disadvantaged by that.

The role of the advisors, in conversations that I have had with them,

Minister, they do not see themselves as having a role in appearing for appeals.

You indicated that would be a choice of maybe an MHA, but it appears to be a

choice that the advisors are making. They will tell you pretty clearly that it

is not their role to appear before a review division and they will not handle

appeals. They will give you some advice but they will not handle appeals. I was

just wondering if you have given some thought to expanding that role?

MR. BARRETT: The thing about it, you said in terms of the level of the

appeal, an appeal sometimes, on the recommendation of the review commission, is

that it is uphill for the worker, but then the compensation committee itself

disputes the actual ruling of the review commissioner but there are provisions

with the review commission that they can hire legal advice to assist the review

commission in terms of their defence with the workers' compensation

commission. That is probably the level at which that should take place. Then you

are getting really into the legal part of it and the commissioner does have the

flexibility to be able to hire a lawyer to advise the commissioner on how they

should proceed.

MR. ROSS WISEMAN: I am not sure if I am making myself clear. I understand

that does happen and the review division will seek legal counsel to determine

whether or not they will grant such leave for reconsideration.

MR. BARRETT: Yes.

MR. ROSS WISEMAN: But, if they grant such leave for reconsideration - let's

say there is merit in the argument made by the commission's legal counsel and

they grant such leave for reconsideration, when you then reappear with your

constituent before the review division, you are reappearing, debating the merits

of the legal argument that has been presented. As a lay person, you are debating

a legal argument. There is no opportunity, because you are reconsidering the

facts of the case but you are also, prior to proceeding on the merits of the

case, itself, you have to debate the reasons for reconsideration. In other words

- let me give an example. There is one on my desk now, where the commission has

asked for reconsideration of a decision, and I have a three-page document

outlining the reasons for that request, and the constituent does not have the

wherewithal to respond to that. So I have to now draft a response on behalf of

the constituent disagreeing with the commission's reasoning and asking for the

reconsideration - and it is a point of law. The reasons that they are asking for

the reconsideration are points of law. I now need to draft a response for the

constituent. Obviously, I do not have that legal background to be able to do

that. What I need to do now is research the legislation and the points that are

referenced in that letter and make an argument as to why the review commission

should not consider the commission's request. Now, that puts my constituent in

a disadvantaged position, because the commission has had the benefit of legal

counsel presenting argument. The constituent of mine has the benefit, because of

their lack of means to go out and hire a solicitor, and they are not eligible

for the legal aid system, they have to rely on what knowledge I might have or

what I can garner from around my office and other people who have had some

experience, in actually framing this response. If the commission, if the review

division, then decides that they are going to proceed with a hearing, then again

I am the one who presents at that hearing and argues the legal points in the

request, and it really puts the worker at a disadvantage.

MR. BARRETT: Yes, there is no doubt about it, it is a problem. I know,

myself, when I did have a couple of cases like that personally, I did hire a

lawyer to advise me and help me present the case, and the full expenditure

always came out of my constituency expenses. I went out and actually hired the

lawyer and paid for it out of my constituency expenses. As you know, when we

revised the MHAs constituency expenses we did have that flexibility of being

able to go out and hire that kind of advice. In a couple of cases that is what I

did. I went out and actually paid for it out of my constituency allowance

because there are rare cases. It is not a day-to-day situation. Most of the

appeals are appeals that you can easily handle, particularly - and the longer

you are at it the easier they get because most of them have a dual pattern. Once

you determine and set certain things out in terms of an appeal, a lot of them

are similar, and once you know what the key points are - I, over the years, have

even gone before the judge in terms of the tribunal. Everyone I have gone before

the judge, I won. There is a pattern to them, but what you are talking about are

very unique circumstances. It happens once in awhile.

The only option open to me was to take funds out of my constituency allowance

and hire a lawyer and try to get a deal, from he or she, who is not going to

charge you a fortune; but you use the influence sometimes to get a good deal and

a good bargain for you and for your constituent.

MR. ROSS WISEMAN: I commend you for your dedication and commitment to

your constituents but -

MR. BARRETT: And that is why we are all here.

MR. ROSS WISEMAN: - not every person out there is represented by their

MHA, and MHAs do have that flexibility right.

MR. BARRETT: That was before I got in Cabinet.

MR. ROSS WISEMAN: So it was not Cabinet salary you were paying for it out

of?

MR. BARRETT: No, it was before I got in Cabinet.

MR. ROSS WISEMAN: Minister, I guess -

MR. BARRETT: Which meant that January, February and March I was

travelling around my district on my own expense.

WITNESS: Nasty.

MR. BARRETT: No, I am not being nasty.

MR. ROSS WISEMAN: Minister, let me be fairly direct with you and ask the

question: Would you give some consideration to a circumstance where the

commission by virtue of having legal council on staff and issues around

reconsiderations and appeal beyond the first level of appeal - because standard

appeal, you are right. On occasion you do, yes, but for the most

part if you are

well versed on it you can probably handle that appeal. On reconsiderations and

on appeals of those decisions by the commission, would you give some

consideration to, in the future, having the office of the employees advisor,

have that office assume the responsibility to assist with that higher level and

with the expertise that is needed? Sometimes legal expertise, I think, is

something that warrants some consideration.

MR. BARRETT: What I can do is - in terms of your suggestion and what you

are talking about - I can express that to the review commission, and as well,

the board. As you know, the system is that the board reports to the minister. I

can express your concerns to the -

MR. ROSS WISEMAN: I would appreciate that.

MR. BARRETT: Right, but for me to dedicate to the commission, it is not

possible for me to do that.

MR. ROSS WISEMAN: I would urge you to move that recommendation on to the

commission and to the review division.

On the issue with respect to the commission and their annual report. The last

annual report we had was in 2001. Your deputy indicated that the 2002 is due the

end of June. Would you have some sense of what the unfunded liability figures

are now?

When it started out at the beginning of the year 2000, the unfunded liability

was $179 million and at the end of 2001 it was up to $200-plus million. Do you

have any sense of what direction that might be headed now?

MR. BARRETT: I cannot give any figures because they are in the process

right now of doing their annual report and the detail studies, and what have

you, are being conducted right now. When the report has been published then

these details will be brought out, but to give you any figures now would be just

speculative.

MR. ROSS WISEMAN: Your deputy indicated earlier about some positive

expectations he was getting out of the report on issues of claims and so on. So

I just assumed that maybe you might have some sense of other details of what

might be coming out of the report as well.

MR. BARRETT: I know there have been presentations to Treasury Board and

that sort of thing. That is an ongoing process right now. I guess once these

figures are available then we will make them available to the Members of the

House of Assembly.

MR. ROSS WISEMAN: Just one other point, and I just wanted to - Minister,

this is an issue I have raised here in the House several times and I have

presented several petitions. Since becoming minister in your new portfolio you

have received some correspondence from a constituent of mine with respect to

amendments that were made in the legislation in May of 2000. It centres around

section sixty-five of the legislation and the amendments that were made for

persons whose monthly allowance, as a surviving dependent spouse, was terminated

after April 17, 1985 due to his or her remarriage. They were entitled to

compensation. Now, there were two pieces of this, as I understand it. In May of

2001 there were amendments made that paid retroactive benefits for those people

who were - from 1985 up to the year 1992. That is what that particular piece of

legislation dealt with. There were retroactive payments made at that particular

time.

Now the legislation, and when the amendments were made, barred the payment of

any interest. Under the Freedom of Information, I understand that the total

amount paid out as a result of that revision here was - and this is in a letter

from the CEO of the commission dated December 10, 2002. It said that the total

dollar amount paid out to eighteen remarried spouses, as a result of the

amendments, was $434,940. The amount paid here was $434,940. It was only paid to

eighteen people, and they are all women, whose spouses had died as a result of a

workplace injury or accident. In that period, from 1985 to 1992, they were cut

off. This is a retroactive payment for that block of time.

I understand it was for that block of time only because there also had been a

previous amendment in 1993. These amendments took place around 1994 that paid

everybody back to 1993. Anybody who had their spouse - for example, the lady in

question here whose spouse died back in the early 1980s and she remarried. When

she remarried her benefits got cut. As a result of a decision of the review

division and a subsequent court appeal of that decision, benefits had already

been paid earlier, back to 1993. That was done as a result of a decision by

court. When that was done, all those widows received their retroactive payment

plus interest. This time, however, when it was paid, and the dollar amount was

an awful lot less, legislation very specifically barred the payment of interest,

and the interest on $434,000 is not a significant amount considering it was only

for a seven-year period on $434,000.

When we all debated that legislation here in the House, I do not think anyone

was malicious in what they did, but I think, in reflection now, I suggest to

you, Minister, it was an oversight, an error was made. I can understand when

legislation wants to bar the payment of interest because it might amount to a

significant liability for government, and I can understand when that gets some

consideration, but in this particular case here the precedent had already been

set for the repayment of monies owed under this provision, and interest was

paid.

I presented petitions a couple of times now asking government to reconsider

that particular change in that particular piece of legislation because I believe

it discriminates. In this case, we are discriminating against eighteen women who

have lost their spouses and have remarried, and there has been a double

standard. They received payment, retroactive payments, plus interest, going back

to 1993, but from the period 1993 back to 1985, we have said we will only pay

you the retroactive payment but we will not give you the interest.

I know, Minister, you have received some correspondence since your

appointment. Have you had an opportunity to reconsider and give that point some

thought?

MR. BARRETT: No, I have not. I have met with the chairman of the workers'

compensation commission, and I have a monthly meeting with the CEO of workers'

compensation, and yes, that has been part of our discussions but we have not

come to any conclusions on it. The dialogue is still ongoing.

MR. ROSS WISEMAN: By dialogue, are you giving -

MR. BARRETT: At this stage, I cannot commit in terms of its -

MR. ROSS WISEMAN: Are you giving some consideration to the merits of the

argument that is being presented?

MR. BARRETT: I always give merit to every argument with which I was ever

presented, but I guess at this stage I do have another meeting soon with the

chair of the board, and the CEO. So there are some issues that are ongoing with

workers' compensation that we will have to come to some conclusion on in the

foreseeable future.

MR. ROSS WISEMAN: When you are having that meeting, would you be able to

clarify something that I do not understand, unless I am misreading it.

The 2001 annual report of the commission, I do not know if you have it there,

Minister, but on page 27 there are notes to the financial statement; I guess

they are qualifying notes. On page 27, item number 18.(c), the heading on it is

Contingencies, what is interesting about this is, this is a report as of

December 31, 2001, where - and I will just read to you - it makes a reference to

the amendments that I just referred to and then it talks about complaints that

they have received through the Human Rights Commission. Then it goes on to say:

These complaints are currently before the commission, at the Human Right

Commission, to determine whether or not to proceed to the board of inquiry. Here

is the interesting point: Retroactive reinstatement of benefits to all survivors

who remarried has the potential to increase the commission's benefits

liabilities by approximately $8,900,000 including accrued interest, and it says

the outcome is still undetermined.

That is what it says in this document here, but in a letter I got from the

CEO, the one I just referred to a moment ago, it indicates that there was

$437,000 paid out. I am just wondering, Minister, if you already have the answer

now, where does this $8.9 million come from as a result of this same amendment?

What are they referring to?

MR. BARRETT: I think we are talking about all the spouses who remarried

before 1985.

MR. ROSS WISEMAN: In am sorry?

MR. BARRETT: The issue here is retroactive benefits for spouses who

remarried prior to 1985.

MR. ROSS WISEMAN: Prior to 1985?

MR. BARRETT: Yes.

MR. ROSS WISEMAN: Okay, so if there is any ruling that takes you back

prior to 1985, the liability could be $8 million?

MR. BARRETT: Yes.

MR. ROSS WISEMAN: What this letter refers to are the issues around 1985

to today, which is the point of my question?

MR. BARRETT: Yes.

MR. ROSS WISEMAN: Okay.

MADAM CHAIR: At this time, I understand coffee is out there. Would you

like to break for coffee now?

MR. ROSS WISEMAN: Madam Chair, personally, I am wrapped up.

MADAM CHAIR: Are you?

MR. ROSS WISEMAN: This is the only point I wanted to raise with this

issue around the commission.

Minister, thank you for your comments. Again, I urge you to consider the

request that you have from my constituents. As a policy issue, not as an

individual request but as a policy issue, it affects more than her.

Madam Chair, I am concluded, actually. I don't know what my other

colleagues want to do.

MADAM CHAIR: Are we ready to call the subheads? We will call them all

together.

On motion, subheads 1.1.01. through 4.1.01. carried.

On motion, Department of Labour, total heads, carried.

MADAM CHAIR: Thank you very much, gentlemen and Jackie.

On motion, the Committee adjourned.