Experience rating program in spotlight
Despite histories fraught with injury and even death, Ontario’s Workplace Safety and Insurance Board (WSIB) has been financially rewarding dangerous employers through its rebate system — and in some cases, in the years immediately following the incidents — according to a new report by the Ontario Federation of Labour (OFL).
Rewarding Offenders points to millions of dollars handed out in workers’ compensation rebates to companies that have been found guilty of health and safety offences.
Between 2011 and 2013, 135 companies that had been previously convicted of offences under the Occupational Health and Safety Act were granted rebates on their premiums by the WSIB’s experience rating system, according to the OFL report.
That evidence points to claims suppression and perfunctory health and safety measures that essentially lead to the WSIB paying the fines it initially slapped on those employers, said Sid Ryan, president of the labour federation.
"In essence, what we’re doing is paying the fines for these bad employers. If you get a fine, you get a rebate," he said, adding that the experience rating program is the wrong way to measure and improve health and safety monitors.
For instance, 78 of those 135 dangerous employers received almost $15 million in rebates in the same year they committed the offences, said the report. And in some cases, the rebates exceeded the fines levied.
Take gold producers Goldcorp, which was paid a net rebate of $2.7 million for 2013, two years after a 57-year-old electrician was killed when he was run over by a scoop tram. The company pleaded guilty to failing to implement adequate safety procedures and was fined $350,000.
"The system, as it stands right now, is saying to employers that, ‘You can kill workers, you can maim workers, but don’t worry about it. If you have a good safety record the following year, we’re going to give you a rebate, regardless of the fact that your health and safety system completely broke down the year before,’" Ryan said.
WSIB disputes report’s accuracy
But the WSIB disputed the OFL’s accuracy, denouncing its report as flawed and littered with misleading information.
The federation of labour’s researchers did not consult with the WSIB during the course of its investigation, said Christine Arnott, a spokesperson for the board.
"(Rewarding Offenders) inaccurately states that numerous rebates were paid to employers when, in fact, they were not," she said.
"In four examples, the report inaccurately states that rebates ranging from $675,000 to $2.7 million were paid to these employers. In fact, all four of these rebates were cancelled under the WSIB’s fatal claims adjustment policy and were never paid out."
Under the board’s fatal claims adjustment policy, a company found responsible for an employee’s workplace death will not be eligible for a rebate during the same year in which the fatality occurred.
"We recognize that more can always be done to improve workplace safety," Arnott said, adding that the workers’ compensation board is in the midst of revamping its experience rating program.
"The WSIB’s modernization of programs helps injured workers receive faster access to specialized medical care and supports, and our new approaches to workplace reintegration for injured workers helps reduce the risk of the onset of permanent impairments."
The workers’ compensation board provides rebates or levies surcharges based on the experience of the employer, and since 2009, it has collected $1.1 billion in employer premium surcharges.
As well, the fatal claims adjustment policy saw the cancellation of $10.9 million in premium rebates since 2009, with $4 million worth of rebates still pending review.
Research ‘ironclad,’ says author
When conducting his research, Joel Schwartz, OFL study author and staff lawyer at the Toronto-based Industrial Accident Victims Group of Ontario, filed Freedom of Information requests and contrasted those against the Ontario Ministry of Labour’s workplace injury and fatalities releases.
As such, the research is ironclad and any suggestion otherwise amounts to pandering, he said.
In his report, Schwartz recommended the WSIB be subject to regular oversight and be held accountable by a third-party body.
As well, he suggested both the experience rating program and the fatal claims adjustment policy be overhauled or thrown out entirely.
The experience rating program is supposed to encourage health and safety, he said.
"But it is so bad at measuring real health and safety performance that it was churning out rebates to employers that hadn’t even complied with the minimum standards."
And as for the fatal claims adjustment, Schwartz called that response a Band-Aid for a bullet wound.
"I don’t think it does anything to encourage health and safety. If it has been consistently applied — and the data we got suggests it isn’t — it’s just tinkering around the edges of a much more serious problem. I don’t think it was anything but a minor political solution to a much bigger problem," he said.
WSIB under fire in 2008, 2012
This isn’t the first time the WSIB has come under fire from the labour federation. In 2008, a Toronto Star investigation revealed the board had rebated tens of millions of dollars to businesses that had been found guilty of workplace injury and death.
After heated backlash, then-Ontario premier Dalton McGuinty called the matter "an embarrassment" and vowed change.
Then, in 2012, the government initiated a funding review, headed by Harry Arthurs, a professor and former dean of Osgoode Hall Law School. In it, he determined that experience rating programs fail to punish illegal claims suppression practices.
Now has never been a better time to fix an antiquated system, Ryan went on to say.
"There is no worse crime that can happen in a workplace than having a fatality," he said.
"It means that all of your systems have completely broken down and you don’t have a decent health and safety working environment — and that is the travesty of it all."
