||Volume 19, Number 2, October 2006
Health and safety: Compromising the historic compromise
by Mark Keelan
For many BCTF members, the Workers’ Compensation Board, or WorkSafeBC as the WCB now prefers to refer to itself, is something of a mystery. What is this organization, where did it come from, and how is it straying from the principles on which it was founded?
The late 19th century saw Canada’s rapid industrialization. An increasing number of workers were being injured or killed on the job. There was no provision for compensation for these workers except through the courts. For a variety of reasons, most workers were hesitant to sue their employers; they could be fired, there was no guarantee that the lawsuit would be successful, and lawsuits took a long time to be heard, during which time the worker was without any kind of financial support. An additional barrier for workers was that if the courts determined that a worker was even minimally responsible for the injury, there was no right to compensation. At the same time employers were worried. A few were genuinely concerned about the plight of their injured workers but, because a court occasionally ordered a significant judgment in favour of a worker, most employers were afraid that if a worker’s action were successful it could potentially ruin the company.
Workers and employers began to look toward Europe, where some countries had devised laws to deal with the problem of compensation for workplace injuries. In Britain, employers were held individually liable for injuries suffered by their employees. Germany took a different approach where groups of industries were collectively liable for the injuries of workers employed by any of the companies within the group.
In 1910, the government of Ontario appointed a Royal Commission headed by Sir William Meredith to examine the issue of compensation for workplace injuries. Meredith delivered his final report and recommendations in 1913. The last two sentences of his report summarize the attitude he brought to his investigation and, disturbingly, could have been written today:
"That the existing law inflicts injustice on the workingman is admitted by all. From that injustice he has long suffered, and it would, in my judgement, be the gravest mistake if questions as to the scope and character of the proposed remedial legislation were to be determined, not by a consideration of what is just to the workingman, but of what is the least he can be put off with; or if the Legislature were to be deterred from passing a law designed to do full justice owing to groundless fears that disaster to the industries of the Province would follow from the enactment of it."
Ontario passed legislation in 1914 based on the principles established by Meredith’s Commission:
- collective, rather than individual liability of employers
- the system would be fully funded by employers
- benefits for workers guaranteed in legislation
- the "Historic Compromise"—workers gave up their right to sue their employers in return for the workers’ compensation system
- the system would be "no-fault"—benefits would be paid whether or not the worker’s actions contributed to the injury
- an independent body would administer the system with equal representation from employers and labour
- the board would have judicial-like authority, decisions could not be appealed in the courts.
British Columbia’s workers’ compensation law passed in 1917 and was based on both Meredith’s recommendations as well as the recommendations of a 1916 Royal Commission headed by Avard Pineo. One of the Pineo Report’s major recommendations, which was accepted by the legislature, was that a system of accident prevention be added to the British Columbia legislation.
Over the past 90 years, the law has continued to evolve. New occupational diseases have been recognized, more industries and workplaces are covered, and prevention initiatives have been expanded to address the needs of the diverse types of workplaces in the province, to name a few of the changes.
It is interesting to speculate about whether or not Meredith and Pineo would be happy with how their plans have turned out. In fact, some recent trends probably would give them cause for concern.
Across North America, governments are buying into the same arguments that were rejected by Meredith, i.e., that the current system is putting them at some kind of an economic disadvantage. According to "Workers’ Compensation: A Cautionary Tale," a report by the New York-based Center for Justice and Democracy, workers’ compensation laws are under attack across the United States. Several states have enacted laws that reduce benefits, narrow eligibility requirements, and limit the length of time benefits are payable. In Missouri, for example, no benefits are payable unless an x-ray or similar test proves an injury. Thus, compensation for soft-tissue injuries is eliminated. Also in Missouri, benefits are reduced by 25 to 50% if the injured worker did not follow a workplace safety rule. In New York City, there are more than 10,000 claims related to rescue work at the World Trade Center disaster. Employers are challenging the majority of the claims. Shockingly, the City of New York, whose workers were on the front lines of the rescue work, is challenging virtually all of their workers’ claims. These changes fly in the face of many of Meredith’s principles.
As with education policy, the current British Columbia government is borrowing liberally from the United States’ failing ideas when it comes to workers’ compensation policy. Wage-loss benefits have been cut from 75% of gross salary to 90% of net. For a worker earning $40,000 per year, the change amounts to a cut in benefits of about $225 per month. Previously, pensions for permanent disabilities were paid for life, now most end at age 65. Many areas of the Occupational Health and Safety Regulation, the rules that guide prevention efforts, have been eliminated or weakened. Last year, there were 188 workplace deaths in BC including 49 in the forest sector and 39 in construction. And, the Workers’ Compensation Board has not put a stop to the increasingly aggressive challenging of claims by employers. The result is that the non-adversarial system envisioned by Meredith is often extremely adversarial and one in which employers hold the advantage over their workers in terms of time and resources.
It is essential that BCTF members continue to advocate for strong laws and regulations designed to prevent workplace injuries and when our prevention efforts fail, advocate for just compensation for workers injured.
Mark Keelan is the BCTF’s health and safety officer for prevention.