The Union’s Involvement in the
Meat Inspection Review,
SARS Commission
and
Walkerton Inquiry
May, 2004
Tim Hadwen
General Counsel
OPSEU
TABLE OF CONTENTS
1. Reprisal Protection – s. 9.1 of
Public Inquiries
Act 3
Meat Inspection Review
2. Order in Council 4-5
3. Union submissions - excerpts 6-40
SARS Commission
4. Order in Council and Terms of Reference 41-44
5. President’s Submission to Commission 45-49
6. Joint OPSEU/Ontario Nurses’ Association Submissions 50-69
Walkerton Inquiry
7. Order in Council 70-71
8. Walkerton Inquiry Report, Part I, excerpts 72-81
9. Walkerton Inquiry Report, Part II, excerpts 82-94
PUBLIC INQUIRIES ACT, s. 9.1
No discipline of employees
9.1 (1) No adverse employment action shall be taken against any employee of any person because the employee, acting in good faith, has made representations as a party or has disclosed information either in evidence or otherwise to a commission under this Act or to the staff of a commission. 2000, c. 14, s. 1.
Offence
(2) Any person who contrary to subsection (1) takes adverse employment action against an employee is guilty of an offence and on conviction is liable to a fine of not more than $5,000. 2000, c. 14, s. 1.
Application
(3) This section applies despite any other Act and the oath of office of a Crown employee is not breached where information is disclosed as described in subsection (1). 2000, c. 14, s. 1.
Effective date
(4) This section applies to representations made, and information disclosed, on or after June 12, 2000. 2000, c. 14, s. 1.
ORDER IN COUNCIL – MEAT INSPECTION REVIEW
Ontario
Executive Council
Conseil exécutif
On the recommendation of the undersigned, the Lieutenant Governor, and by and with the advice and concurrence of the Executive Council, orders that:
WHEREAS
it has been determined that it is desirable to authorize under the common law and pursuant to the prerogative of Her Majesty the Queen in Right of Ontario and in the discharge of the government’s executive functions, an individual to review, on a systemic basis, the meat regulatory and inspection regimes, including free standing meat processors, in Ontario in order to strengthen public health and safety and business confidence;
AND WHEREAS
it is desirable to set out the terms of reference for such a review;
NOW THEREFORE
the Honourable Mr. Justice Roland J. Haines be authorized to conduct such a review;
AND THAT
the terms of reference for Mr. Justice Haines’s review be as follows:
Mandate:
1. Mr. Justice Haines shall:
(a) review regulatory standards, including the existing legislative scheme, and the interface among inspection, compliance and enforcement in the meat regulatory and inspection regimes, and those relating to free-standing meat processors. This should include a review of the roles and responsibilities of the Ministry of Agriculture and Food, Ministry of Natural Resources, Ministry of Health and Long-Term Care, and local health units;
(b) conduct inter-jurisdictional analysis and identify best practices; and
(c) make recommendations on approaches to strengthen regulatory and legislative systems, including strategies for accelerating harmonization with the federal government.
2. Mr. Justice Haines may request any person to provide information or records to him, and hold public and/or private meetings.
3. Mr. Justice Haines shall perform his duties without making any findings of fact or misconduct, or expressing any conclusions or recommendations regarding the civil or criminal liability of any person or organization, and without interfering in any investigations or criminal or other legal proceedings. In particular, consideration must be given to the deferral of interviews with potential witnesses in order to maintain the integrity of those processes.
4. Mr. Justice Haines shall deliver his final report containing his findings, conclusions and recommendations to the Attorney General on April 30, 2004 or, if requested by Mr. Justice Haines, at such later date approved by the Attorney General. In delivering his report to the Attorney General, Mr. Justice Haines shall be responsible for translation and printing and shall ensure that the report is available in both English and French, in electronic and printed versions, and in sufficient quantities for public release. The Attorney General shall make the report available to the public.
Resources
5. Within an approved budget, Mr. Justice Haines may retain such counsel, staff, investigators, and expert advisers, as he considers necessary in the performance of his duties at rates of remuneration approved by the Ministry of Attorney General. Persons retained shall be reimbursed for reasonable expenses incurred in connection with their duties in accordance with Management Board of Cabinet Directives and Guidelines.
6. Mr. Justice Haines shall follow Management Board of Cabinet Directives and Guidelines and other applicable government policies in obtaining other services and goods he considers necessary in the performance of his duties unless, in Mr. Justice Haines’s view, it is not possible to follow them.
7. All ministries, Cabinet Office, the Premier’s Office, and all boards, agencies and commissions of the government of Ontario shall, subject to any privilege or other legal restrictions, assist Mr. Justice Haines to the fullest extent so that he may carry out his duties.
Recommended: “signed” Concurred: “signed”
Attorney General Chair of Cabinet
Approved and Ordered: Jan 4/2004 “signed”
Lieutenant Governor
O.C./Décret 1/2004
THE
ONTARIO PUBLIC SERVICE EMPLOYEES UNION’S
SUBMISSION AND RECOMMENDATIONS TO THE REVIEW INTO THE
MEAT REGULATORY AND INSPECTION REGIMES IN ONTARIO
March, 2004
TABLE OF CONTENTS
A) Introduction to Submissions and to OPSEU
1.1 Importance of the Review
1. The Ontario Public Service Employees Union is very pleased to have the opportunity to make submissions to the Review into the Meat Regulatory and Inspection Regimes in Ontario.
2. Significant changes are needed to protect meat safety in Ontario and to restore full confidence in Ontario’s meat products. An independent examination of the present meat regulatory and inspection regimes has long been called for. In our submission, this Review needs to make a series of strong and detailed recommendations, which must be implemented by the present government.
3. In order to assist the Review, the Union has prepared the following submissions, which include detailed suggestions for effective recommendations. The submissions are presented in consecutively numbered paragraphs. The recommendations are contained in the body of the submissions in bold and numbered sequentially. All of the recommendations are listed again in full in the conclusion. These submissions have been guided by the following objectives:
- establishing a meat inspection and enforcement system that ensures the safety of the meat supply and warrants the public’s trust;
-in the short term, quickly patching the current broken system;
-in the medium term, creating a meat inspection public service with the structure, culture, staffing, expertise and resources needed to properly fulfill its responsibilities;
-in the long term, ensuring that the meat inspection and enforcement system is able to respond effectively to new and emerging consumer preferences and health risks as an integral part of a multi-barrier system of food safety.
1.2 Introduction to the Ontario Public Service Employees Union
4. The Ontario Public Service Employee Union (OPSEU) is a trade union representing approximately 100,000 employees in this province. We represent employees who work in the Ontario Public Service, the broader public service (including, for example, funded transfer payment agencies such as public health units, public hospitals, social service agencies), the Colleges of Applied Arts and Technology and the private sector. OPSEU’s ancestor, the Civil Service Association of Ontario, commenced representing public servants in 1911 and for decades was the in-house voice of Ontario’s government employees. Collective bargaining commenced in the 1960s and OPSEU was founded in 1974. (See Ontario Public Service Employees Union,
Don’t Call Me Servant, included with this submission.) The Union now represents 55,000 public servants, who constitute the majority of government employees in all ministries.
5. OPSEU represents the vast majority of the non-management and non-engineering staff at the Ontario Ministry of Agriculture and Food. Out of a total OMAF staff of 800, OPSEU represents 500 (380 classified and 120 unclassified, of which 79 are full time). Those represented include all meat inspectors and their administrative support. The Union represents all non-management and non-engineering staff at the Ontario Ministry of Natural Resources including the investigators, and all non-management and non-engineering staff at the Ontario Ministry of Health. OPSEU also represents the front line staff, including the inspectors, of several public health units including the Owen Sound-Grey Bruce Health Unit.
6. Since March 2003, OPSEU has worked directly with the ‘contract’ meat inspectors and supported the activities of the Ontario contract meat inspectors group. There were 118 ‘contract’ meat inspectors in Ontario regularly employed by OMAF. On March 15, 2004, almost all of those inspectors took up public service employment in the form of sixty-one (61) classified, permanent positions and fifty-seven (57) unclassified, contract positions, joining the preexisting 10 classified inspectors.
7. OPSEU has a long-standing commitment to participating in the public debate on public services. The Union advocates for recognition of the importance of public services in our society and for recognition of the crucial role that front line employees perform in the delivery of those services for the benefit of the people of Ontario. The Union participated actively in the Walkerton Inquiry and is involved in the SARS Inquiry. For several years, the Union has raised concerns about meat safety and pointed out the negative effects of the use of ‘contract’ meat inspectors. Submissions were made to the public hearings on Bill 25 in June of 2001.
1.3 How OPSEU Ensured that its Submissions to the Review are Well Grounded in the Views of Frontline Staff
8. These submissions have benefited greatly from the input of a project team of OPSEU members (some of whom where formerly contract meat inspectors) and OPSEU staff who worked tirelessly. The ongoing contribution of Meat Hygiene Officers Brian Burdick, Bob Lowry and Earl Yantzi has been crucial. The assistance of Doug Peebles, OPSEU Chair of the OMAF Ministry Enforcement and Renewal Committee, Timothy G.M. Hadwen, General Counsel, and Jan Borowy, Campaigns Officer, is gratefully acknowledged.
Ontario Public Service Employees Union also thanks researchers, Ken Hurlbut of the Ryder Wright Blair and Doyle law firm and Fred Gloger, for their attention to detail.
9. Heartfelt thanks are also due to the many other former and current meat inspectors, MNR investigators, OMAF staff and public health inspectors who provided material for this report. Their information and perspectives give these submissions their authenticity as a clear view from the front-lines of ensuring meat safety in Ontario.
10. There were three main sources of factual information for this submission:
a) Over 25 detailed phone or face-to-face interviews with front line employees;
b) A detailed telephone survey of over forty (40) contract meat inspectors in September 2003; (See OPSEU website
www.opseu.org/ops/meat/SurveyReport Sep1903.pdf.
c) An in-person, closed-format survey of the contract inspectors at a special union information meeting held on March 6, 2004. Seventy-two (72) inspectors responded to the survey, for a response rate of sixty-one (61) per cent. Attached as Exhibit “A” is the March 2004 survey.
11. The quotes cited in this report come directly from current and former meat inspectors and other OPSEU members, unless otherwise identified. Ontario Public Service Employees Union staff have taken care to ensure that the quotes are accurate and that the sources remain confidential. The quotes are anonymous at the direct request of the members due to an on-going fear of reprisal from OMAF and other ministries, despite the ministries’ assurances that none would occur.
1.4 The History of OPSEU’s Involvement with “Contract” Meat Inspectors
12. The province’s meat inspectors were largely permanent staff of the Ontario Ministry of Agriculture and Food until 1996. In 1996/97, the provincial government used a variety of measures to cut costs including but not limited to: closure of services, downsizing and lay-offs of crown employees, particularly public servants, and divestments to transfer payment agencies. One unique example was the creation of ‘fee-for-service’ independent contract positions to carry out the duties of meat inspectors. The government of Ontario laid off almost all meat inspectors. By 1997, meat inspection was carried out by fee-for-service contractors in all but seven abattoirs. The remaining seven abattoirs were staffed by 10 full-time classified positions who worked in one plant only.
13. The contract meat inspectors were required to sign a fee-for-service agreement between the individual and her Majesty the Queen in right of Ontario as represented by OMAF, Meat Industry Inspection Branch. The scope of duties included the enforcement of the
Meat Inspection Act
and Regulation 632/92 and other related
Acts. Inspectors would be paid twenty ($20) dollars an hour for services rendered. Inspectors were required to agree that they would not engage in slaughtering, processing, packaging, distributing and otherwise handling meat or meat products with the plant operator they are assigned. Both parties had the right to terminate the contract within 15 days. Attached as Exhibit “B”.
15. The reasons for the change to contract staff presented by the government of the day were budgetary, accompanied by claims that there would be no undue risk to meat safety. One of the crucial documents was a KPMG study which has never been produced to the Union. The Union has requested that the Review obtain this document and make it public so that any rationales for the delivery of meat inspection through fee-for-service piece rate contracts can be fully examined. Based on all of the information available to date, the Union is of the view that contract meat inspection significantly compromises meat safety. The negative effects of job insecurity and high turnover are highlighted below.
15. A primary barrier to any union legal challenge of “contract” meat inspection was the
Public Service Act, section 8.1, which prescribes that individuals are not considered to be Crown employees or public servants for employment purposes unless they have been “expressly appointed” to that office by the Crown. (Public Service Act, R.S.O. c. P.47, s. 10 and
Crown Employees Collective Bargaining Act, .S.O 1993, c.38, s. 1 (1) and 1.1 (2)) Absent such express appointment, it seems that such individuals cannot be represented by a union under the
Crown Employees Collective Bargaining Act. The result was that contract meat inspectors were not subject to union representation.
16. In October 1997, Revenue Canada found, for purposes of Employment Insurance legislation and Canada Pension Plan legislation, that the OMAF contract meat inspectors were insurable and pensionable. (Attached as Exhibit “C”.) Revenue Canada found that they were employees for the following reasons: the Ministry exercises control over the workers since the employer set/arranged hours of work; workers were required to perform the services personally; workers could not hire others to complete the work; they could not perform other employment with the employer; the workers had to take directions about the work; the employer established the workers’ clientele; the employer established the routes and territory; the employer provided and pays for training; the employer established deadlines and priorities; the workers present themselves as provincial meat inspectors to the clients In addition to exercising control, Revenue Canada found that the nature of the job they performed is indispensable to the Meat Industry Inspection branch at OMAF.
17. In 2002, individual meat inspectors complained to the Ontario Ministry of Labour that OMAF was contravening the
Employment Standards Act 2000. The complaint was anonymous. The Ministry of Labour found that the ‘per diem’ contractors are employees for the purposes of that
Act
as well. But the decision points out that Crown employees have restricted rights under the
Act (Employment Standards Act, R.S.O 1990, c. )
including denial of access to overtime. Attached as Exhibit “D”.
18. In sum, OMAF was maintaining a convenient legal fiction in its relationship with the contract meat inspectors. Although it was clear by all regulatory (and common law) tests that they were actually employees, OMAF purported to hire them as independent contractors and thereby denied them the individual benefits of union representation and a collective agreement.
19. Meanwhile, the Union began to advance the alternate claim that this kind of work, contract work for a Ministry, was actually bargaining unit work, which the collective agreement between Ontario Public Service Employees Union and the Crown reserved exclusively to members of the OPSEU represented bargaining unit, and which could not be validly assigned to persons outside of that bargaining unit. This argument, that the work, if not the employees, was within the bargaining unit, was advanced through a grievance filed under the
Crown Employees Collective Bargaining Act
and presented at the Ontario Crown Employees Grievance Settlement Board. This grievance was settled in relation to meat inspectors on the basis set out in the document attached as Exhibit “E”. In compliance with that settlement, the 61 permanent Meat Hygiene Officer positions and 57 unclassified or temporary Meat Hygiene Officer positions were created and then actually filled, effective March 15, 2004, with the contract meat inspectors.
20. There is an outstanding issue arising out of the contract meat inspectors grievance settlement. The Union has a substantial degree of concern about which employees were selected for the unclassified contracts, rather than the permanent positions. Under the settlement that selection had to be made “in good faith” and it may very well be the Union’s claim that this was not done. This allegation will be litigated at the Grievance Settlement Board over the next number of months and, while the factual support for the claim that the selection lacks good faith does include systemic elements that might be appropriate for the Review to consider, the Union will place those issues entirely before the Grievance Settlement Board.
21. Another aspect of the re-employment of meat inspectors as public servants is the percentage of the meat inspector positions filled through the use of unclassified employment. It is the Union’s submission that almost all of the unclassified staff should in fact have been hired as classified staff. Although it is a collective bargaining issue, it is also a real systemic issue related to meat safety that should be addressed by the Review, as further discussed below.
1.5 Reprisal Protection
22. The Ontario Public Service Employees Union has long been concerned that a public servant who “blows the whistle” on management wrongdoing, or threats to public health and safety, needs protection from reprisal by the government employer. The Union campaigned for the addition of whistleblower protection to the
Public Service Act. In 1993, Part IV of the
Public Service Act, entitled “Whistleblower’s Protection”, was passed by the Legislature, but awaits proclamation (Statutes of Ontario, 1993, s. 38, s. 63(6)).
23. This same concern about reprisals for whistleblowing arises in relation to the work of inquiries or reviews examining government action. For example, staff of the Ministry of Environment were deeply concerned about the possibility of reprisal for providing information to the Walkerton Inquiry. For this reason, OPSEU lobbied for a reprisal protection amendment to the
Public Inquiries Act,
R.S.O 1990, c.P.41.
Section 9.1 (1) of that
Act
now states that “no adverse employment action” will be taken against any employee because that person “acting in good faith” makes representations to or discloses evidence to an Inquiry. It was further clarified that the oath of office of a Crown employee is not breached where an employee makes such representations or discloses such evidence. (Public Inquiries Act, s. 9.1(1) and (3)).
24. Responding to the widespread reprisal concerns of then contract meat inspectors, OPSEU has been of the view that identical protection should apply to the Meat Inspection Review. Indeed it would have been preferable for the Review to be an Inquiry, at least for purposes of section 9.1 of the
Public Inquiries Act. As an alternative, OPSEU sought clarification that employees, including contractors, making representations or providing evidence to the Review would receive the same substantive protection as contained in the
Public Inquiries Act.
25. The initial assurances provided by the various involved Ministries, by letter dated January 9, 2004, (attached as Exhibit “F”) fell far short of providing such protection. The Ministries stated that individuals should “be assured that your co-operation, absent any wrong-doing, will not result in any negative disciplinary (or contractual) repercussions”. This assurance was inadequate in a number of ways:
1. The phrase “absent any wrongdoing” was not sufficiently clear, as it might normally, rightly or wrongly, be thought inappropriate for a public servant to publicly criticize the government;
2. The phrase “negative disciplinary (or contractual) repercussions” was too narrow, as it is possible to take reprisal against an employee or contractor by means other than disciplinary or contractual repercussions. For example, an employee could suffer reprisal through denial of promotion, denial of desirable assignments, denial of vacation scheduling, denial of compassionate or bereavement leave, managerial harassment, etc. It was necessary for the broader wording of “no adverse employment action” to be used.
26. After several weeks of lobbying, OPSEU was successful in obtaining further clarification from the relevant Ministries. The full text of the letter sent, dated February 27, 2004 to contract meat inspectors (attached as Exhibit “G”) provides the same assurance as contained in the
Public Inquiries Act
and further indicates that it is appropriate for members to contact their bargaining agent.
27. Although the provision of this clarified reprisal protection was belated, it has had a beneficial effect for the Review. A number of individuals have indicated that they are only now willing to provide information directly to the Review or provide information to the Union which can in turn be presented to the Review. Unfortunately, other Ministry employees continue to fear reprisal. A number of contract meat inspectors have stated that they are afraid and will say nothing to the Review until they are settled in their new jobs. In order to fully appreciate why this may be so, it is necessary to have regard for the vulnerability of employment of contract meat inspectors at the exact time of the Review. Those inspectors were being selected for either permanent or unclassified jobs. Included in that selection process was assignment to locations that could result in employees working either much closer or much further from their homes. These determinations contain a substantial discretionary component on the part of management and are easily susceptible to reprisal that would be difficult to trace or prove. In these circumstances, it is hardly surprising that a number of individuals have remained reluctant to speak to the Review.
6.12 Job Security
6.12.1 Providing the Inspectorate with the Job Security Needed for the Proper Performance of Their Job
163. Obviously, the security of tenure of a full time position helps workers feel more comfortable in taking positions that inconvenience the influential interests with which they deal. For this reason alone, there should be a general tendency towards staffing inspectorates with full time permanent positions.
164. Meat inspectors do stop production at abattoirs. When surveyed in March 2004, 86 percent responded that yes they had stopped production. Only 13 percent responded no. When asked how often they stopped production, inspectors reported the following:
-daily 3 percent;
-weekly 15 percent;
-monthly 19 percent;
-1-3 months 18 percent;
-less than six months 26 percent
-18 percent did not answer the question.
165. The data shows that 38 percent of inspectors are stopping production at least once per month. Moreover, inspectors were asked if one of the abattoirs you inspect is a repeat offender and do you stop production at this specific abattoir regularly? 44 percent said yes. 46 percent said no. 10 percent did not answer this question. Clearly, stopping production is an ongoing reality of the work of meat inspectors. Detaining and condemning animals happens much more often.
166. It is a credit to the inspector’s commitment to meat safety that they take the steps they do, even when susceptible to loss of work. In Question 8 on the September 2003 survey conducted by the Ontario Public Service Employees Union, contract meat inspectors were asked “do you have concerns that your hours could be cut back by your area manager? If yes, why?” 74 percent of respondents said “yes”. 20 percent of respondents replied “no” and 6 percent did not respond. Their comments were:
-“I have no power, there is nothing I can do about it if my hours are cut”;
-several commented “we have no guarantee of hours. Further processing was cut by 50 percent in July 2003”;
-“yes, if you refuse shifts, your hours are cut”
-“if you perform poorly than your hours are cut”;
-“if cut back any further I will quit”
-“at any moment and any time”
-several commented that their hours have already been cut back
-the area manager “acts like the godfather”
-several commented that if the area manager doesn’t like you, then your hours are cut.
-“if you screw up at all, then your hours are cut”
-“if you slip up, even once, then you are gone or your hours are cut”
-“if you upset the area manager, or don’t do as you are asked, then your hours are cut”;
-“the area manager has the power to do it”;
-“if you are outspoken, then there are repercussions”;
-several were concerned there may not be enough work and that area plants may be closing;
-others commented that they had been kicked out of plants by the owner and nothing was done by OMAF and then they found their hours cut;
-when you speak your mind or give your opinion and buck their systems;
-“If I don’t accept assignments and for speaking my mind”;
-speaking my mind;
-being involved in the inspectors group.
These comments are still directly valid for the 57 unclassified part-time meat inspectors who have no guarantee of hours.
167. Greater job security is needed to permit those inspectors to feel more comfortable in doing their job. Employees suffering job insecurity are more likely to be cautious in respect of whom it is that they alienate or inconvenience. In circumstances where there is a perceived powerful influence on the part of operators with OMAF management, it can be expected that unclassified inspectors will be cautious about angering either OMAF management or operators by taking controversial stands in the performance of their inspection duties. This is of concern because controversial stands are sometimes exactly what is required to ensure meat safety.
168. A crucial additional reason for increasing the job security of unclassified meat inspectors is to increase the rate of retention. The build up of institutional memory is beneficial in the performance of public service duties.
Many agencies are repositories, and their staff are trustees, of specialized knowledge, historical experience, time-tested wisdom, and a degree of consensus about the public interest as it relates to a particular function in society. Persons staffing agencies have often been charged with executing the popular will in ways that sustain and nurture the public interest” (Wamsley et al. “ The Public Administration and Governance Process: Refocusing the American Dialogue” in Chandler (ed.),
A Centennial History of the American Administrative State,
London: Collier-MacMillan, 1987, p. 300)
169. OMAF meat inspectors are, in a real sense, “trustees” of the public interest, and the public is better served in respect of meat safety if that inspectorate does not have high staff turnover. Experienced inspectors know what to look for. They are familiar with the risks to health and they know what to do to remove those risks. They are familiar with the standards and practices of OMAF as well as the particularities of the abattoir industry and particular operators. It should be accepted that high turnover has the consequence of reducing the number of experienced and committed staff, leaving the public less well protected, not to mention leaving operators unnecessarily inconvenienced, by inexperienced inspectors.
170. Unfortunately, very high turnover has been endemic in the OMAF meat inspectorate. In 2000, the turnover rate for inspectors was 27 percent. In both 2001 and 2002, the turnover rate was 17 percent. In 2003, the turnover rate was 21 percent. All rates are well-above the average turnover rate for the comparable large pools of inspectors in the OPS. For example, the turnover rate of the key job classifications for Occupational Health and Safety Inspector position and the Environmental Officer positions were .45 percent and 8.3 percent respectively.
171. The turnover of contract meat inspectors was a real issue for those inspectors. 80 percent said so and only 13 percent said no, while 7 percent did not know. Their explanations for why it was such an issue included:
-the inexperience of meat inspectors in plants allows for substandard products to reach the public;
-yes, there is a lack of training for new inspectors. They don’t get enough training before they are sent out by themselves. They are hiring people with no experience;
-there are too many new faces;
-too little knowledge and pushed into field;
-creates low morale;
-retraining not done and budget spent on training rookies;
-it makes us all look stupid;
-not enough training, thrown into field and its risky;
-if the consumers knew about the lack of experience, it is alarming;
-current meat inspectors are expected to be training new inspectors and it’s too much;
-too many operators are complaining about the lack of knowledge in the new staff;
-OMAF is hiring people with no experience;
-too many good inspectors with experience are leaving;
-I’m new and this situation isn’t getting better;
-if OMAF spends all its time in training new hires, yet will not spend money on staff retention, what is the point?
-it creates an unstable workforce;
-major concern – food safety is at risk due to their incompetence;
-inexperienced people are not doing the job and owners/operators don’t like it;
-cleaning up messes left by the inexperience and untrained workers and covering for their incompetence.
172. Additional comments include the observation that “right now, the province is training inspectors for the feds”. “It takes two years to get to the point where you can shut a line down and know it is right”. While high turnover is a personnel issue, it is also a meat safety issue.
6.12.2 Nature of Unclassified Contracts
173. Under the
Public Service Act, provision is made for so-called “unclassified” employment. Permanent staff are subject to classification into the classification scheme of the Ontario Public Service by the Civil Service Commission. Temporary staff, those on term contracts, are not classified but are paid by a process of being matched with classifications. This leaves them in the “unclassified” category. “Unclassified” employees are typically given contracts of either six months or a year’s duration. There is no statutory or collective agreement right to renewal of that contract. The employer may choose whether or not to renew the contract subject only to the possibility of a grievance being filed if the non-renewal of the contract was the consequence of a breach of an employee’s entitlements under the
Human Rights Code
or a breach of some other provision of the collective agreement such as reprisal for union activity.
174. There is some expectation in parts of the Ontario Public Service that unclassified contracts will be renewed year after year. A leading example occurs in the employment of unclassified Correctional Officers in jails run by the Ministry of Correctional Services. Furthermore, the OPSEU/MBS Collective Agreement does contain provision for the conversion of unclassified employees who have worked in the same job for eighteen months into a permanent classified position where management has determined that there is an ongoing need for the work. (Ontario Public Service Employees Union/MBS Collective Agreement, 2002-2004, Article 31A.15.1.1). However, the expectation of renewal after the first year is not a legal certainty or legal requirement. The result is that persons possessing unclassified contracts have substantially less job security than persons on classified contracts.
175. Certainly, that is the feeling of many of the unclassified meat inspectors. As one inspector put it, “the unclassified may not feel really wanted. If anything else comes along, they may leave. It also makes it difficult for them to stand up”.
6.12.3 Impact of Irregular Hours
176. The lack of job security of unclassified staff is exacerbated in the case of meat inspectors because they are employed
for irregular hours. They have no guarantee of any set number of hours. This exposes them to having the hours in their contracts reduced mid-term of their unclassified contract or virtually eliminated entirely. They are still susceptible to effective loss of part or almost all of their employment at any time.
177. This susceptibility is particularly acute because of the particular circumstances of the employment of these individuals. Many of them are employed part-time in order to service plants in rural or remote locations. They are tied to employment at several plants in their immediate environs. If they develop a poor relationship with a plant operator and that poor relationship has the potential to adversely affect their hours, then they run the risk of loss of some employment. This can lead to avoiding confrontation with plant operators in their region. At least one inspector has pointed out that irregular part-time work is insufficient seniority to support independence. As she said “You need to be able to be moved out without losing”. By that the inspector means that the irregular part-timers need to know that if they develop a confrontational arrangement with an operator, for the good reason of “standing up” for the safety of meat for the public, and this results in that employee leaving the plant, the result will not be reduced employment for that inspector.
178. Perhaps the example that most clearly crystallizes the inherent problem with irregular part-time employment for someone employed as a meat inspector is the example of the decision to stop work in a plant either temporarily or on an ongoing basis, or to bring forward information that results in a plant suspension or revocation of licence. In those circumstances, the direct result of an inspector doing their job will be the loss of all or part of that job by virtue of the loss of inspection hours in that plant. This makes irregular part-time inspectors overly dependent on the production of the industry that they inspect. Another way this concern can be put is that it is a form of institutionalized conflict of interest. Public servants are responsible under the
Public Service Act
Rules of Conduct for avoiding circumstances which produce an appearance of conflict between their duty to the public and their own economic self-interest. In the circumstances of an irregular part-time meat inspector, such a conflict could be said to exist directly because the inspector’s duty to fully and firmly enforce the meat inspection requirements, up to and including stopping work and triggering suspensions conflicts with the inspector’s interest in getting steady hours at that plant.
179. The principled response to this situation is that inspectorate employment, including hours of work, must not be subject to being adversely affected by the making of regulatory decisions.
6.12.4 Methods to Provide More Job Security
180. The easiest and most direct means to ensure adequate job security is to have a systemic preference towards full time permanent employment. As many of the inspectors as possible should be made permanent and full-time employees. The need for inspectors bunches at certain times during the week and at certain times during the year, and so there is some risk that there would be full-time inspectors who may not be fully occupied on the kill floor at some points during the week. There is other productive work that can be done, in the form of increased inspection of meat processing. It can be done by inspectors on a more controlled and optional basis than the inspection of slaughter. If and when OMAF takes over increased responsibility for “free standing” processing, it should ensure that all part-time meat inspectors are offered the opportunity to undertake further processing inspection in a fashion that produces combined full-time permanent jobs.
181. In the interim and in circumstances where full-time permanent employment cannot be arranged, there are two further solutions.
182. First, all of the unclassified part-time meat inspectors whose services are needed on an ongoing basis but for whom full-time employment is truly unavailable should be offered permanent part-time employment. There is no objective reason for them to be on artificially short six month or one year unclassified contracts. The Ontario Public Service Employees Union would be prepared to discuss how to fit such employment into the collective agreement.
183. Second, regular part-time unclassified employees should be provided with guarantees of minimum hours. It is entirely within OMAF’s capacity to determine such guarantees based on historic usage and indeed it now budgets inspector hours based on expected usage. Inspectors should be offered guarantees of the hours which they can reasonable be expected to perform so that any regulatory decisions they make which have an adverse impact on hours of operation of a plant do not have an adverse impact on their own job security or income. Circumstances may arise where those employees will have to be reassigned to other plants or to other work, but those circumstances would be limited and any inconvenience they caused would be more than compensated for by the benefits of providing some security of tenure to those employees. Such security would help give them the confidence to fully and competently carry out their role of protecting the public interest in respect of meat safety, and would reduce the turnover rate.
Recommendation 32: The OMAF should convert as many unclassified contracts to full-time permanent contracts as possible. In the alternative, those continuing to be employed on a regular part-time basis should be provided with permanent part-time employment coupled with a minimum guarantee of hours.
6.13 Staffing Levels
6.13.1 Area Managers
184. An individual who has been an acting area manager says that area managers are “overwhelmed”. Area manager responsibilities include juggling the schedules of the regular part-time inspectors, dealing with training, supervising audits, dealing with personnel issues, assisting inspectors with contentious situations that arise in the plants, etc. There had previously been ten area managers and then the numbers were reduced to eight. This may have been either primarily budgetary or to get rid of “a couple of slugs” namely area managers who were not performing adequately, but in either case, it was not the appropriate solution to the long-term staffing of the Food Inspection Branch. Meat inspectors require access to good competent managers with the capacity and the time to deal with and resolve difficult and contentious issues in support of food safety.
Recommendation 33: OMAF should increase the Area Manager complement by two to a total of ten.
6.13.2 Inspectors
185. There are not enough inspectors. This is demonstrated both by the excessive work patterns of the existing inspectorate and by the chronic under inspection which occurs in many abattoirs.
186. Dealing first with the pattern of employment of inspectors, the Union’s best information is that in 1997 there were approximately 150 meat inspectors employed full time by the agriculture Ministry. As of December 2003, this number had been reduced to 103.78 full-time equivalent meat inspectors in Ontario, 71 in full-time classified positions and 57 in positions of regular unclassified status.
187. The Ministry’s own data shows that there are not enough meat inspectors in the system to ensure meat safety. During the busiest two-week period between February 5 and February 20, 2003, inspectors logged 10,802 hours. This is the equivalent to 149 full-time equivalents. During the slowest two-week period from March 20 to April 3, 2003, inspectors logged 7,778.5 hours or 108.57 full-time equivalents. The average number of inspectors required to work normal hours during the period from January 3 to October 29, 2003 was 125.61 full-time equivalents. For the period of January 3, 2003 to October 20, 2003, a minimum of 66 contract inspectors logged more than full-time hours. Their overtime hours alone were the equivalent of 18.34 full-time positions. In other words, inspectors are routinely working more than normal full-time hours in order to accomplish the minimum inspections that the Ministry currently provides.
188. This coincides exactly with the anecdotal evidence from many inspectors about their long hours. In the September 2003 Survey, 40 percent of those surveyed stated that they worked 40-49 hours per week and 20 percent said that they worked more than 50 hours per week. For 76 of the respondents, this was their normal schedule. In other words, the meat inspectorate, both full-time and nominally part-time are regularly working 40-50 hours per week, which is well in excess of the normal workweek for employees in these kinds of classifications.
189. When OMAF was using contract meat inspectors, the need for additional inspectors could be concealed in simply giving contractors more contract hours. Under the collective agreement which is now in effect for both the classified and unclassified staff, there may be somewhat less overtime worked, and more inspector hours will be used for proper reasons like travel time, holidays and leaves. It can be expected that the need for staffing will increase somewhat for this reason alone. There is a general perception that “the new system cuts back in hours and overtime – so it will require more inspectors to do the job”.
190. In any case, front line staff observe that there are too few inspectors working in the abattoirs now to properly inspect all slaughter and processing. There are many abattoirs where only one inspector is assigned, where there should be two inspectors working. This occurs for any number of reasons.
191. One inspector who has previously worked for the federal system points out that, in the federal system, the carcasses tend to be pre-cut for the inspector’s ease of inspection. The provincial abattoirs don’t have the same number of trained staff that can necessarily perform those pre-cuts and so it is difficult to rely on the smaller abattoirs to do the preparatory knife work. As a result, provincial inspectors do a lot of the knife work themselves. This means that it is very hard for them to be away from the kill floor. An inspector is therefore required to devote more time to slaughter inspection which compromises the ability to properly inspect processing. There are numerous plants in which the volume of work and “the speed of the line” is such that one inspector working alone can only do basic minimum inspection. Product is only superficially inspected, and supervision of processing is neglected. For the inspections to be done properly there should be two or three inspectors where there are currently only one or two inspectors. It is also pointed out that having two inspectors in a plant really increases the quality of the inspections and increases meat safety. With a “buddy system”, inspectors can work as a team, benefit from each other’s expertise and provide the support needed to make difficult decisions in difficult circumstances.
192. A means by which OMAF has dealt with the budget crunch in government over the last several years has been to have an inadequate number of inspectors in plants. One inspector is needed in order to permit legal slaughter, but the second inspector can be spared without adversely affecting industry operations, even though the absence of that “pair of eyes” has an adverse impact on meat safety. In the 1998 George Morris Report it was noted that one of the “major aspects of the operating environment” was “pressure to reduce and avoid costs. Cabinet has cut the Ministries and the Ministry has cut the MIIB’s budget substantially and continues to in 1997/98 (p. 9). This leads to the pressure to reduce internal costs, operate more efficiently, and reduce inspection hours, all of which has been accomplished over the last few years.” The report goes on to note under “Strategic Directions” the foregoing leads to five strategic initiatives:
1. Significant budget reduction without compromising food safety. This has already been initiated. In the first phase, the number of inspectors in high volume plants was adjusted. In the second, full-time inspectors who were not staffing full-time operations were laid off. In addition, costs of operation, supervision, and support have been measured and reduced... (p. 9)
193. The inspectors disagree with the claim that significant budget reduction occurred without compromising food safety. Staffing levels have been set with an overly small budget as the driving force and with food safety as the secondary consideration.
As a rough guestimate, the Ontario Public Service Employees Union represented staff estimate that approximately forty of the abattoirs need another inspector to engage in sufficiently thorough oversight of both slaughter and processing.
Recommendation 34: The number of full-time inspectors should be increased by 40 inspectors, and, in the alternative, an independent audit of the number of inspectors required in the plants for proper inspection should be conducted and the results implemented within six months.
EXHIBIT “G”
“MINISTRY OF AGRICULTURE AND FOOD LETTERHEAD”
February 27, 2004
MEMORANDUM TO:
All Staff
SUBJECT:
Meat Inspection Review
Further to the memorandum issued on February 24, 2004 regarding Justice Haines review of Ontario’s meat regulation and inspection system, I would like to address two issues raised by the bargaining agents.
Firstly, a question was asked as to whether the assurances that no adverse employment action by the government will be taken against employees or contractors who, acting in good faith, make representations to or disclose evidence to the Meat Inspection Review apply to former employees of the Ontario Public Service (OPS). I would like to confirm that these assurances are also intended to apply to any former OPS employee.
Secondly, it was asked whether it is appropriate for staff to speak to their bargaining agent. response to this question, it is appropriate for employees to contact their bargaining agent, should they choose to discuss their involvement in or questions pertaining to the meat inspection review.
Above all, it is essential to stress the importance of cooperating and assisting with Justice
Haines and his team in any way possible. We want to work together to ensure safety of
Ontario’s meat industry.
Frank Ingratta
Deputy Minister
“MINISTRY OF AGRICULTURE AND FOOD LETTERHEAD”
February 27, 2004
MEMORANDUM TO:
All Contracted Meat Inspection and Audit Staff
As you may be aware, the government of Ontario has announced the appointment of Mr. Justice Roland J. Haines to examine and to report on the province’s meat regulation and inspection system. Under the Order-in-Council making the appointment, all Ministries, Cabinet Office, the Premier’s office, and all boards, agencies and commissions of the government are required to assist Mr. Justice Haines.
It seems appropriate to avoid any misunderstandings by clarifying the assurances issues earlier. Please be assured that no adverse employment action will be taken against any employee or any contractor because that person, acting in good faith makes representations to or discloses evidence to the Meat Inspection Review. These assurances are also intended to apply to any former OPS employee.
Should you have any questions about your participation, please contact the ministry’s Human Resources Director, Jim Felker, at 5l9-826-3739. It is also appropriate for you to contact the bargaining agent representing OPS staff should you choose to discuss your involvement in or questions pertaining to the meat inspection review.
Assisting Mr. Justice Haines is of great importance because we want to continue to ensure the highest standards of safety in the meat industry. It is very important that we assist with this review in any way that we can.
Frank Ingratta
Deputy Minister
C: Mr. Tony Dean,
Secretary of the Cabinet
Ms. Kathryn Bouey, Deputy Minister, Management Board Secretariat
Mr. Kevin Wilson, Management Board Secretariat
“MINISTRY OF AGRICULTURE AND FOOD LETTERHEAD”
February 24, 2004
MEMORANDUM TO: ALL STAFF
SUBJECT: MEAT INSPECTION REVIEW
As you may be aware, the government of Ontario has announced the appointment of Mr. Justice Roland J. Haines to examine and to report on the province’s meat regulation and inspection system. Under the Order-in-Council making the appointment, all ministries, Cabinet Office, the Premier’s office, and all boards, agencies and commissions of the government are required to assist Mr. Justice Haines.
Staff can assist by making sure that any documents and other records that may be relevant are made available. “Documents and other records” should be interpreted broadly and includes paper, electronic material, c-mails, handwritten notes, discussion papers, correspondence and files stored in computer hardware and disks. Disclosure of records and documents is subject to any privilege or other legal restriction. Each Ministry has appointed an individual to facilitate document disclosure. Employees should contact Brenda Mitchell with respect to documents that should be made available to Mr. Justice Haines.
It seems appropriate to avoid any misunderstandings by clarifying the assurances issued earlier. Please be assured that no adverse employment action will be taken against any employee or any contractor because that person, acting in good faith, makes representations to or discloses evidence to the Meat Inspection Review. The oath of office of a Crown employee is not breached where an employee, acting in good faith, makes representations or discloses information to the review.
If staff would like legal advice regarding their participation in the review, or if they have any questions about what privilege attaches to a document, they may contact Stephen Stepinac, Director of Legal Services Branch.
Assisting Mr. Justice Haines is of great importance because we want to continue to ensure the highest standards of safety in the meat industry. It is very important that we assist with this review in any way that we can.
Frank Ingratta
Deputy Minister
COPY TO: Tony Dean, Secretary of the Cabinet
Kathryn Bouey, Deputy Minister, Management Board Secretariat
Kevin Wilson, MBS
ORDER IN COUNCIL – SARS COMMISSION
Ontario
Executive Council
Conseil exécutif
On the recommendation of the undersigned, the Lieutenant Governor, and by and with the advice and concurrence of the Executive Council, orders that:
WHEREAS
the Minister of Health and Long-Term Care has appointed the Honourable Mr. Justice Archie G. Campbell to investigate the recent introduction and spread of Severe Acute Respiratory Syndrome (“SARS”) pursuant to section 78 of the
Health Protection and Promotion Act;
WHEREAS
the Minister of Health and Long-Term Care has provided Mr. Justice Campbell terms of reference for the investigation in a letter dated June 10, 2003;
WHEREAS
persons who disclose information to Justice Campbell in the course of his investigation will be protected from any adverse employment action;
AND WHEREAS
it is desirable to support Mr. Justice Campbell’s investigation and to mandate full co-operation with him by all Government ministries, boards, agencies and commissions:
ALL
Government Ministries, Boards, Agencies and Commissions, and their employees, shall assist Mr. Justice Campbell to the fullest extent in order that he may carry out his investigation;
ALL
Government Ministries, Boards, Agencies and Commissions shall respect the independence of the investigation;
THE
Attorney General shall furnish Mr. Justice Campbell with the resources and support referred to in paragraph 7 of the terms of reference for the investigation.
Recommended: _____________________ Concurred: _________________
Minister of Health and Chair of Cabinet
Long-Term Care
Approved and Ordered: June 10, 2003
Date Lieutenant-Governor
O.C./Décret 1230/2003
TERMS OF REFERENCE – SARS COMMISSION
Ministry of Health
and Long-Term Care
Office of the Minister
10th Floor, Hepburn Block
80 Grosvenor Street
Toronto, ON M7A 2C4
Tel: 416-327-4300
Fax: 416-326-1571
www.gov.on.ca/health
June 10, 2003
The Honourable Mr. Justice Archie G. Campbell
130 Queen Street West
Toronto, ON M5H 2N5
Dear Mr. Justice Campbell:
This letter will confirm your appointment as an independent Investigator, pursuant to section 78 of the
Health Protection and Promotion Act, to investigate the recent introduction and spread of Severe Acute Respiratory Syndrome (SARS). I would like to express my thanks for your valuable input into the development of the Terms of Reference for this inquiry, a copy of which is appended hereto.
As you are aware, persons who disclose information to you in the course of your investigation will be protected from any adverse employment action, pursuant to Section 9.1(1) of the
Public Inquiries Act.
As indicated in the Terms of Reference, you will deliver your reports to me and I will release them to the public. You will receive resources and support staff through the Ministry of the Attorney General, pursuant to paragraph 7 of the Terms of Reference.
In accordance with the attached Order in Council, all Government ministries, agencies, boards and commissions and their employees have been directed to co-operate with your investigation and to respect its independence.
On behalf of the Government and the people of Ontario, I thank you for agreeing to accept this most important mandate.
Yours very truly,
Tony Clement
Minister
Independent SARS Commission
Terms of Reference
1. The subject matter of the investigation shall be:
(a) how the SARS virus was introduced here and what measures, if any, could have been taken at points of entry to prevent its introduction;
(b) how the SARS virus spread;
(c) the extent to which information related to SARS was communicated among health care workers and institutions involved in dealing with the disease;
(d) whether health care workers and patients in health care treatment facilities and long term care facilities were adequately protected from exposure to SARS, having regard for the knowledge and information available at the time;
(e) the extent of efforts taken to isolate and contain the virus and whether they were satisfactory or whether they could have been improved;
(f) existing legislative and regulatory provisions related to or that have implications for the isolation and containment of infectious diseases, including the quarantine of suspected carriers;
(g) any suggested improvements to provincial legislation or regulations, and any submissions that the Province of Ontario should make concerning desirable amendments to federal legislation or regulations; and,
(h) all other relevant matters that Mr. Justice Campbell considers necessary to ensure that the health of Ontarians is protected and promoted and that the risks posed by SARS and other communicable diseases are effectively managed in the future.
2. The investigation shall be conducted in a manner that does not impede ongoing efforts to isolate and contain SARS.
3. Mr. Justice Campbell may request any person to provide relevant information or records to him where he believes that the person has such information or records in his, hers or its possession or control.
4. Mr. Justice Campbell shall hold such public or private meetings as he deems advisable in the course of his investigation.
5. Mr. Justice Campbell shall conduct the investigation and make his report without expressing any conclusion or recommendation regarding the civil or criminal responsibility of any person or organization, without interfering in any ongoing criminal, civil or other legal proceedings, and without making any findings of fact with respect to civil or criminal responsibility of any person or organization.
6. Mr. Justice Campbell shall produce an interim report at his discretion and deliver it to the Minister of Health and Long-Term Care who shall make the report available to the public. Upon completion of his investigation, Mr. Justice Campbell shall deliver his final report containing his findings, conclusions and recommendations to Minister of Health and Long-Term Care who shall make such report available to the public.
7. To conduct his investigation Mr. Justice Campbell shall be provided with such resources as are required, and be authorized by the Attorney General and shall have the authority to engage lawyers, experts, research and other staff as he deems appropriate, at reasonable remuneration approved by the Ministry of the Attorney General.
8. The reports shall be prepared in a form appropriate for release to the public, pursuant to the
Freedom of Information and Protection of Privacy Act.
9. These terms of reference shall be interpreted in a manner consistent with the limits of the constitutional jurisdiction of the Province of Ontario.
10. In the event that Mr. Justice Campbell is unable to carry out any individual term of his mandate, the remainder of these terms of reference shall continue to operate, it being the intention of the Minister of Health and Long-Term Care that the provisions of these terms of reference operate independently.
Speech By Leah Casselman, President of OPSEU
to SARS Commission
September 30, 2003
Good afternoon. My name is Leah Casselman. I am President of the Ontario Public Service Employees Union. Thank you for this opportunity to speak.
I am here today with Patty Rout, Vice-Chair of the 28,000 member Health Care Divisional Council of OPSEU; with Pat Collyer, President of OPSEU Local 575 representing 250 of our 700 members at the Scarborough Hospital; and with Jack Arnott, an OPSEU member and a respiratory therapist at the Scarborough Hospital.
Patty will speak about the impact of SARS on a wide range of health care professions and health care settings. Pat will talk about the impact of SARS on her members at the Grace and General sites, and tell how the union had to step up and fill the void left by management in a time of crisis. Jack will relate some personal experiences from the SARS crisis.
Our union has asked to participate because we do not ever want to have an experience similar to the SARS crisis that we have just emerged from.
SARS affected OPSEU members not just in the Greater Toronto area but right across the Province. Make no mistake, our members at the Grace and at the General sites of the Scarborough Hospital simply went through hell.
But first, I’d like to say, on behalf of all the members of our union, that these folks do what they do not just in times of crisis. They do this work and face these hazards every day. And they get very little recognition from society or from our governments for this everyday effort.
Clearly,
• During a health care crisis, a hospital should be a haven of health,
not
a vector of contagion.
• Health care workers should
not
be treated as pariahs in their own communities.
• Above all, hospital staff should not have to watch their co-workers get sick, or die, because they were not given the right equipment, or instruction, to do their work safely.
We as a society owe it to our health care workers on the front lines to give them every protection we can.
For the government to run ads and call these workers heroes, is a nice gesture, but it fails to address the real issues; ongoing disrespect and lack of understanding and appreciation for the important work they do.
For the government to make decisions like designating Scarborough Hospital as a SARS hospital, without consulting the already exhausted and shell-shocked workers, is an outrage.
And who are these heroes? Yes, doctors and nurses are important to the system. We all know that, and respect the work they do.
But OPSEU members also provide important support and professional services inside hospitals and were virtually ignored in the Directives, by the media and by the public.
To ignore the diversity of professional, clerical and service staff that make up the health care team, as was done during this crisis, is counter productive and frankly dangerous for our health care system.
Our members will outline, in this presentation, why this is the case.
Let me state another reality:
• There was no crisis plan in Ontario to deal with killer contagious diseases. Given all the post 9-11 hype around bio-terrorism, it’s hard to imagine our
hospitals would have been so unprepared for SARS.
But our members know this was the case. And it
still
is the case.
Furthermore, our public hospitals are underfunded, and seriously under resourced to do the job society expects them to do. Our members have known this for some time. But the public and the government obviously did not.
Let me draw attention to a survey of OPSEU hospital professionals done by Viewpoints Research. Among the findings:
• Two thirds of OPSEU members believe the hospital does not employ enough staff in their job classification.
• Six out of ten professionals regularly work sick, to get the job done.
• More than three-quarters of all professionals say staff shortages are negatively affecting patient care.
• One in four staff have been made sick or suffered depression because of poor working conditions.
• One in five say staff are making too many mistakes because of poor working conditions and staff shortages.
This survey was done in November 2002, was released to the public in January, and is on our web site.
We did try and send out clear warnings: In February of 2003, OPSEU members in hospitals across Ontario declared a Day of Action to protest and bring attention to staff shortages and horrific working conditions. Many risked discipline to do this.
Our members were already stretching themselves to the limits of their resources under normal, pre-SARS conditions. We knew the system could not handle any kind of a crisis, because it was already at the breaking point.
The severe
shortages
in many key professions will continue to worsen, as more and more staff near retirement, or simply burn out.
There is
no surge capacity
in the health care system. There is poor understanding of the precautions that need to be taken to control contagious or infectious diseases. There is no recognition when workloads are assigned that staff need time to put everyday precautions in place.
We, as a society, seem to have forgotten that, really sick people, with highly contagious diseases, can and often do end up in our hospitals.
We simply don’t have the right procedures in place to deal with these hazardous situations. During SARS 1 and SARS 2, Joint Health and Safety committees did not meet, protective equipment was not available, contaminated protective clothing was not properly disposed of, and fit testing was either not done, or done improperly. Our members were, again and again, needlessly put in harm’s way.
It seems strange that we have procedures in place in our correctional system to deal with infectious diseases, but not in our health care system.
Our members lives were at stake, and all they heard about was tourism and the economy. We were disturbed and appalled that, during the SARS crisis, so much focus was put on the economic impacts of SARS rather than on protecting the health and safety of our members.
It was shocking to hear our members being told not to wear masks because quote “it sends out the wrong message” at a time when no-one really knew how this disease was spread, nor how virulent it is.
That’s what happens when you take a “business model” approach to a health care crisis.
Hospital and health care administration is not just a business. Running hospitals with the same rules and standards as a manufacturing plant simply does not and will not work. You can’t replace all managers who have a health care background, with business school graduates. If people in positions of authority don’t understand how the health care system works and the jobs people do, at the most basic level, they will make the wrong decisions.
To compound this, hospitals are still run in a very paternalistic way, based on a 19th century model. Our health care professionals are knowledge workers in our health care system. They are capable of making sophisticated decisions if they are given the tools to do so. If consulted, they can make a huge difference.
Sadly, they rarely are consulted.
They’re not consulted, because they’re not respected.
Many of our members, like those of other unions, are also forced to work in two or more facilities, just to make ends meet and feed their families. Possibly the most shocking revelation of the whole SARS episode was that the Health Minister was entirely unaware of the rampant use of a casual work force, and with many staff working at multiple sites. Post-SARS, we still have workers that are regularly expected to work at multiple sites.
“Just-in-time” inventory practices have translated into “just-in-time” workers. That’s not the way to deliver high quality health care.
This is not just a quality of work issue, but also, in the end, a public health issue.
As well, the rationalization of services means sick patients are still being transferred around from one hospital to another. It makes no sense for patients and workers to be transferred here, there and everywhere, when the whole idea of disease control is that of isolation and containment.
It is the ultimate irony that, during the worst public health crisis in Toronto in recent decades, the place our citizens felt most unsafe was the one place they should have been able to go to get better – the hospital. Indeed, the hospital was the vector of contagion for SARS.
Lastly, the Ministry of Labour also has a key role to play during this kind of crisis, in ensuring worker health and safety is protected. The Minister should remember that, if the health care worker is not protected, the patient certainly is not. The Ministry failed utterly to understand or to perform its proper role during this crisis.
Our members will now go into more detail about how dysfunctional our system is and how it can be improved.
Leah Casselman (conclusion)
Thank you Patty, Pat and Jack. OPSEU will be submitting a detailed written brief with specific recommendations following the public hearings. But I would like to conclude today with some broad recommendations:
1) Governments and employers need a workable crisis plan in all our health care facilities for dealing with contagious diseases. Otherwise our members continue to be at risk in the workplace.
2) Governments and employers need to re-think the extent to which the “business model” has invaded our health care facilities. We need to ensure there is institutional memory of how to handle various crises and that those at the top can make decisions based on their knowledge of what is practical and effective.
3) Hospitals need to create more full-time, permanent jobs for all health care workers, not just doctors and nurses.
4) Governments and employers need to act quickly to stem the acute shortages of health care professionals by recruiting and working harder to retain professionals within our public system.
5) There needs to be better organization and communication in times of crisis. The union can help, but our members should not be forced to do management’s job.
6) Decision makers need to respect and understand the work of all members of the health care team, not just doctors and nurses. We need to include all front line workers in the decision-making process.
7) Governments and employers need to stop putting the economy and money before worker health and safety. If we don’t take care of health care workers’ health and safety on the job, patient care is compromised. If contagion is properly controlled, the economic issues simply go away.
8) Finally, the Ministry of Labour has to do its job and get more actively involved in protecting the health and safety of the health care workers without whom the whole structure would collapse.
Once again, on behalf of OPSEU, I appreciate the opportunity to share these experiences with you.
OPSEU/ ONA
Joint Report on
Health & Safety
Matters Arising from SARS
November 2003
Toronto, Ontario
This document has been prepared for the purpose of the SARS Commission
Table of Contents
1. Introductions
1a. The issues that arose during the SARS crisis are critical to OPSEU and ONA
1b. No one was prepared for SARS
1c. Three main areas to be addressed
2. The Directives
2a. Overview
2b. Lack of transparency during the process of creating and revising the Directives
2c. Directives were incomplete
•
Detailed Directives at Last
•
The First Directives for High Risk Procedures
•
Late Directives for Fit Testing and Respirator Program
•
March 29 Directive to Acute Care Hospitals
2d. Directives did not address work processes of workers other than nurses and doctors, nor other potentially vulnerable workplaces
2e. Employers interpreted Directives differently
2f. Directives confusing as they changed rapidly – changes neither highlighted nor explained
2g. At times, decisions that were made raised questions that concerns other than worker health and safety and public safety may have influenced the content of the Directives
Directives
Recommendations
3. The Occupational Health and Safety Act and the Role of the Ministry of Labour
3a. Overview of relevant legislation
3b. Joint Health and Safety Committees ineffective or do not meet at all
3c. Ministry of Labour Enforcement Activities Curtailed
Chronology of events involving the Ministry of Labour
Recommendations:
4. Inadequate Infection Control Policies, Protocols And Training
Recommendations
The recommendations provided in this document are preliminary. Further recommendations will follow.
Prepared by: Lisa McCaskell, Health and Safety Officer, OPSEU
Erna Bujna, Labour Relations Specialist, Workers Compensation/Occupational Health and Safety, ONA
1.
Introductions
1a.
The issues that arose during the SARS crisis are critical to OPSEU and ONA
•
ONA membership
– 48,000 members mainly comprised of RNs with approximately 1,500 allied Health Care Workers across the Province. ONA has approximately 21,500 members in Region 3, the area most affected by SARS. This region consists of the regional municipalities of Durham, York, Peel, Halton and Toronto.
•
OPSEU membership
– 113,000 members in total, more than 28,000 health care workers. Of these 28,000, there are approximately 15,000 members in the hospital sector, most of them members of regulated health professions, such as respiratory therapists, x-ray technologists, laboratory technologists, physiotherapists, occupational therapists, diagnostic imaging technologists, speech therapists and many others. This sector also includes OPSEU members who are cleaners, office and clerical workers, and other non-regulated health care workers. OPSEU members who contracted SARS were those who delivered patient care as well as clerical workers in hospital admitting departments.
•
WSIB reports
that they have received 160 claims for compensation from Health Care Workers (HCW) who exhibited symptoms of SARS; they received another 98 claims from HCWs who were exposed to SARS but did not develop symptoms; two HCWs and one physician have died of SARS following workplace exposures.
•
Health and Safety (H&S) officer duties at OPSEU and ONA
– ONA has one Health and Safety Officer, OPSEU has two. They respond to member and staff requests for research, guidance and support on all health and safety issues. They develop educational materials for members and staff and deliver them. They liaise with other unions in their health and safety activities, develop union policies on health and safety, assist with health and safety litigation, and lobby for legislative change.
1b.
No one was prepared for SARS
• everyone should have been better prepared, given 9/11 and all the false alarms about biological terrorism
• all parties should use SARS as an opportunity to become better prepared to deal with the next emergency, as well as to improve everyday practices that will contribute to improved worker and public safety
1c.
Three main areas to be addressed:
The Provincial Operations Centre (POC) Directives; the Occupational Health and Safety Act (OHSA), focusing on the roles of Joint Health and Safety Committees (JHSC) and the Ministry of Labour; and infection control policies and practices
• although both OPSEU and ONA have a number of other issues that will be raised with the SARS Commission, this document focuses on issues that had an impact on worker health and safety
• other issues have been brought to the Commission either in the Public part of the inquiry, or during private interviews with union members, by the Commission
• in the health care sector, worker health and safety and the health and safety of patients are mirror images of each other. It is the unions' experience that when considering infectious diseases, it is critical to understand that if health and safety policies and practices are deficient, infection control measures will also be poorly implemented; inadequate infection control measures will result in a workplace where workers’ health and safety will be at risk.
2.
The Directives
2a.
Overview
•
March 18, 2003, a letter from the MOHLTC was sent to all physicians
in Ontario, warning them of the arrival of SARS in the province. It states that it is an update of an earlier letter sent March 14, 2003, which neither ONA nor OPSEU have seen. Not only does the March 18 letter give detailed information about what was known about SARS at the time, it also gives instructions on Infection Control measures. The letter advises that Health Care Workers (HCW) who have direct contact with suspect SARS cases use gloves, gowns, eye protection and N95 masks. Neither union has any knowledge that any of this information was communicated to HCWs in any health care facility. Why would critical information pertaining to the protection of HCWs and infection control practices be sent only to physicians?
•
Nine days later, on March 27, 2003, the first Hospital Directive
was issued by the POC for all Acute Care hospitals in the province. This first Directive required staff only in the Emergency Departments of GTA and Simcoe County Hospitals to wear N95 masks and other protective gear. Workers in the rest of the hospital were not required to take any special precautions to protect themselves. This distinction between what protection was recommended for which groups of workers in the same facilities arose again and again throughout the crisis. Both unions were constantly trying to establish which workers in which areas were required to wear what personal protective equipment (PPE) and why. And then both unions were trying to assess if the Directives were protective enough and communicate that message to the members.
• The March 27 directive requested hospitals outside the GTA and Simcoe County to screen patients for SARS. Hospitals in the GTA and Simcoe County had a number of restrictions placed on them – surgical masks on patients and others entering Emergency departments, protective clothing (gloves, gowns, eye protection, N95 mask or equivalent) for all staff in Emergency departments, limitations on visitors, restrict number of entrances, etc.
• For convenience, in this document, the Provincial Operations Centre has been deemed the source of all the Directives, although it was never clear if final authority for the Directives lay with the POC or the MOHLTC. The occasional document was even issued directly by the Ministry of Public Safety and Security. The Directives were always posted on a MOHLTC website using Ministry letterhead, but they were signed by the Commissioner of Public Security and the Commissioner of Public Health and Chief Medical Officer of Health. The relationship between the Ministry and the POC was not made clear.
• Directives subsequent to the March 27 document, came fast and furious, targeting Acute Care facilities most often, but also giving direction to long-term care facilities, Community Care Access Centres, home care workers, and physicians’ offices.
•
March 29 Directive
requested acute care hospitals in GTA and Simcoe County to ensure they
move to round the clock Infection Control coverage
and that for
all staff when in any part of the hospital
(not just emergency departments) to use frequent hand washing techniques and to use an N95 (or equivalent) mask and to ensure that masks are fit tested.
• ONA/OPSEU assumes Directives went directly to each hospital by email, although it was not clear whether they were distributed by the Ontario Hospital Association (OHA) or the MOHLTC. Once inside the hospital, both unions are not certain what happened next. In some instances, hospitals posted and distributed the Directives in their entirety; in most cases that OPSEU/ONA are aware of, only the employer's interpretation of the Directive was distributed in the workplace
• Member complaints to ONA/OPSEU indicate that in their facilities the Directives were treated as “maximum” measures to be taken to decrease the risk of transmission of SARS to the public and to HCWs. It is OPSEU and ONA’s position that the Directives should have been treated as “minimum” measures in the same way that the
Occupational Health and Safety Act
sets minimum standards for the protection of workers.
•
In summary, it is ONA/OPSEU’s assessment that the Directives often did not offer enough protection to workers. A striking example of this was a Directive requiring respirators only in Emergency Departments. Additionally, it is the union’s concern that the hospital and MOL decisions to treat the Directives as maximum measures rather than as a minimum may have resulted in increased exposures and infection of health care workers.
....
Recommendations:
•
That the structure, membership and mandate of the Provincial Operations Centre be communicated to stakeholders and the public and that in future crisis situations the work of the POC be made more transparent to stakeholders.
•
That the development, including the process and rationale, to amend, revise and post Directives must be transparent and easily understood, especially by the stakeholders who must implement the Directives.
•
That in the future, all POC communications be forwarded to all affected parties such as workers in affected workplaces, Joint Health and Safety Committees, and affected unions and that such communications be posted in a fashion accessible to all concerned.
•
That all POC communiqués and Directives that affect worker health and safety will also reference the Occupational Health and Safety Act, its Regulations and appropriate Standards and Guidelines. It must be clarified that the OHSA and its regulations remain the law even in a provincial emergency.
•
That the Ministry of Labour have a greater role on a future POC when workers' health and safety is being impacted by decisions made at the POC. For example, a senior Inspector and Industrial Hygienist should have been active participants at the POC. (See section below on the Occupational Health and Safety Act and the Ministry of Labour.)
•
That in future, if decisions are being made that will influence work processes, that there be members of the POC who have recent and extensive knowledge of those work processes. In addition that representatives with expertise in health and safety from the affected unions work closely with the POC.
3.
The Occupational Health And Safety Act And The Role Of The Ministry Of Labour
3a.
Overview of relevant legislation
The most relevant sections of the
Occupational Health and Safety Act
cover the duties of the employer, duties of the supervisor, rights and obligations of workers, the role of the Joint Health and Safety Committee, the powers of Ministry of Labour inspectors and the right of workers to refuse unsafe work. In addition the
Regulation for Health Care and Residential Facilities
under the OHSA offers guidance to workers and employers dealing with hazards specific to the health care sector. For long periods in many workplaces and for the entire crisis period in others, it appeared to both unions as if the
Occupational Health and Safety Act
did not exist – or at the very least it was as if it did not apply when the workplace hazard was an infectious illness.
The following is a short list of the most relevant sections of the OHSA and the
Regulation for Health Care and Residential Facilities
during the SARS crisis:
• S.25(2)(a) – the employer has an obligation to provide information, instruction and supervision to workers to protect their health and safety
• S.25(2)(h) – the employer has the duty to “take every precaution reasonable in the circumstances for the protection of a worker”
• S.27(2)(c) – the supervisor has the duty to “take every precaution reasonable in the circumstances for the protection of a worker”
• S.25(2)(c) – the employer shall “when appointing a supervisor, appoint a competent person” and competent is defined as being familiar with the
Act, its regulations and hazards in the workplace
• S.25(2)(e) – the employer is obliged to assist and cooperate with the JHSC and health and safety representatives as they perform their functions
• S.28(1) and (2) – workers must work in compliance with the
Act
and its regulations, wear any protective equipment required by the employer, report hazards and contraventions of the
Act
to his/her supervisor, no worker shall alter any protective equipment or devices or work in a way that may endanger himself or others
• S.9(18) – sets out the main functions of the Joint Health and Safety Committee which are to identify hazards to workers, make recommendations to the employer and workers for the improvement of health and safety of workers, recommend to the employer and workers the establishment of programs, measures and procedures respecting health and safety of workers, obtain information from the employer about hazards, be consulted about and have a designated member present at the beginning of any testing that has to do with health and safety
• S.43(1)(a) and (b) – this is the section that sets out the limitations on the right to refuse unsafe work for health care workers, among others. In general terms, health care workers do not have the right to refuse if the circumstance that they consider to be hazardous is “inherent in the worker’s work or is a normal condition of the worker’s employment” or “when the worker’s refusal to work would directly endanger the life, health or safety of another person”
• S.50(1) – the Employer shall not make any reprisals on workers who have exercised their rights under the
Act
• S.51 and 52 – sets out the Employer’s obligations to report fatalities and critical injuries, as well as non-critical injuries and occupational illnesses to the JHSC, the union and the Ministry of Labour
• S.54(1)(a) – a Ministry of Labour inspector can enter any workplace at any time, with the exception of a private dwelling
• S.57(1) – when an inspector finds a contravention of the
Act
or a regulation, he/she can order the employer to comply with the provision forthwith or within a period of time
• S.57(6) – when an inspector finds that a contravention of the
Act
or regulation is a danger or hazard to a worker, he/she can issue a stop work order until the hazard is fixed
•
Health Care & Residential Facilities Regulation S.8, 9, 10: Sections 8 and 9
set out the general duty to establish measures and precautions to protect workers’ health and safety. Section 10 addresses the employer’s obligations when a worker is required to wear personal protective equipment.
•
Critical Injury Definition Regulation 834
defines critical injury for the purposes of the
Act
•
Internal Responsibility System (IRS)
– Although the OHSA never mentions the Internal Responsibility System, it is a cornerstone of the health and safety system contemplated by the
OHSA. In theory, all of the parties’ rights, duties and obligations combine into a system that will allow the workplace parties to resolve health and safety concerns in the best interests of all. The IRS is based on the notion that the workplace parties have equal rights and responsibilities and that most health and safety problems can be successfully addressed because it is in the interests of the employer and the workers to have a safe and healthy workplace. However, this approach seems to ignore the reality that the workplace parties do not have the same amount of power and that it is the employer who controls the workplace. Both ONA and OPSEU have a great deal of experience with workplaces where the IRS simply does not work.
Both unions are aware of many instances where there appeared to be violations of the OHSA and the
Health Care Regulation. Some examples of possible violations of the
Occupational Health and Safety Act
and or
Regulation
are:
Failure of some employers and supervisors to provide enough, correct or any PPE to workers (OHSA S. 25 (2) (h) & 27 (2) (c))
Some supervisors did not appear to understand their responsibilities to ensure that workers health and safety concerns were addressed. (s. 25 (2) (c) and s. 27 (2) (c)).
Some employers gave little or no instruction to affected HCWs, especially those whose concerns were not addressed by the directives. (s. 25 (2) (a))
Some employers refused to allow JHSC meetings to address the SARS crisis. (s.25 (2)(e))
Both unions received reports that employers had not reported critical injuries or occupational illnesses to the JHSC and to the trade union. (s.51 & 52 (1) and (2)).
Neither union is aware that any employer had introduced and implemented a respiratory protection program prior to the SARS crisis. (s. 10 (1) and (2)
Health Care and Residential Facilities Regulation)
Both unions received reports of employers who had not developed measures to ensure that pregnant workers health and safety was also protected. (s.9(1) 8.)
3b.
Joint Health and Safety Committees ineffective or do not meet at all
• It is the experience of both ONA and OPSEU that in many cases, pre-SARS, the health and safety systems inside many hospitals were weak and ineffective. Both unions have received reports that JHSCs often did not meet, or met infrequently, health and safety issues were rarely resolved, workplace inspections did not take place, legislated training was not up-to-date, and workplace injuries and illnesses were not reported to either the JSHC or the MOL (as required by
OHSA S.51, S.52).
• Consequently, when the SARS crisis arrived, members reported that their employers took the position that there was not a role for the JHSCs or the Internal Responsibility System. It was ONA/OPSEU’s position that JHSCs should meet on an emergency basis to address SARS-related health and safety concerns. Although both unions regularly gave this advice in writing and verbally to their members and to their local union leaders in attempts to get their JHSCs to meet, very few were successful. Even when the JHSCs did meet, these meetings were often ineffective. Additionally, both unions raised the lack of JHSC involvement at the OHA teleconferences and still very few JHSCs met regularly.
The following are examples of these problems:
On
March 26/03
an ONA Labour Relations Officer for
The Scarborough Hospital
(TSH) reported that the Union had requested the employer to cooperate and hold emergency meetings of the JHSC. OPSEU’s Local President was making the same request. It wasn’t until April 1/03 that TSH finally agreed to hold a JHSC meeting on April 2/03. However, the ONA Labour Relations Officer reports that the first full JHSC meeting did not actually take place until April 16, 2003. TSH was meeting daily with Union Leaders but did not want to involve the JHSC. When regular JHSC meetings began in April 2003, OPSEU members reported that a number of issues were dealt with successfully.
At
North York General, workers reported numerous health and safety concerns that indicated the IRS was not working. The ONA Bargaining Unit President called the MOL for assistance with various unresolved health and safety issues and was told that these were internal matters and not a violation of the Act. No help was forthcoming from the MOL.
At Toronto Rehabilitation Institute, ONA received a report that despite requests to meet the employer refused to acknowledge the need to have a JHSC meeting.
On
June 10, 2003, after a suspected outbreak of SARS originating in the Lakeridge Dialysis Unit, requests by OPSEU members for a JHSC meeting were denied. The employer said it did not think a JHSC meeting was necessary although it did agree to meet with local union presidents. When the union advised the employer it would consult with the MOL about this issue, the employer relented and agreed to allow the JHSC to meet.
Toronto Hospital Corporation (University Health Network UHN), North York General, St. Michael’s Hospital and Sunnybrook and Women’s College Health Sciences had to be ordered by the MOL to consult with the JHSC on the employer’s fit testing compliance plan.
At UHN ONA learned that meetings with the JHSC were problematic as the employer did not have an employer co-chair. ONA learned in April that UHN had cancelled meetings of the JHSC.
At Princess Margaret Hospital (PMH) given the current SARS situation (with a recommended moratorium on meetings) both co-chairs agreed to cancel the April meeting of the JHSC
•
In summary, if the hospital sector had a properly functioning health and safety system with safety conscious and responsive employers, “competent” and active supervisors, and active JHSCs made up of well-trained members, both unions believe that a number of problems could have been avoided and perhaps fewer workers would have become ill with SARS. As soon as the SARS crisis was recognized, it is the unions’ position that all employers should have acted aggressively to ensure training, equipment and safety supervision was in place, and JHSCs should have been holding emergency meetings to discuss existing infection control measures to protect workers and to discuss and consider the Directives coming from the POC. It would have been useful for the JHSCs to meet collaboratively with personnel in charge of infection control to ensure that the Directives were being interpreted in manner that was appropriate for existing conditions in their facility.
Effective JHSCs would have been able to quickly assess where the risks of exposure to SARS were greatest and would have worked to ensure that workers understood the Directives and could implement them. Effective JHSCs would have known or could have assessed existing knowledge bases in different groups of staff taking into consideration previous training, education, and languages spoken in order to ensure that the measures in the Directives were being communicated appropriately and adequately to staff in every department.
In most cases, the ideal scenario sketched out above did not take place. Much of both unions’ time was spent offering basic education to members and JHSC members about their rights under the OHSA and the employers’ obligation to protect workers’ health and safety. Both unions
were almost always just trying to get the JHSCs to meet.
3c.
Ministry of Labour Enforcement Activities Curtailed
It is the role of the Ministry of Labour to enforce the OHSA and its regulations. It appeared to both unions that there was a deliberate attempt on the part of the MOL to curtail the enforcement activities of its inspectorate from the very beginning of the crisis. OPSEU received a March 26, 2003 draft protocol for all MOL district and regional offices that prohibited any MOL staff from attending at any SARS affected worksite, even in the case of a work refusal.
This draft memo, which we understand to have been operative throughout the crisis, instructs MOL staff who receive a “formal worker complaint under OHSA” to refer all such complaints to the District Manager. In “unusual circumstances,” the District Manager is to “contact the Regional Director.” The protocol advises that lawyers at Legal Services Branch and MOL physicians will be available to provide assistance to the District Manager.
In bold print the protocol states: “The District Manager will handle all SARS complaints personally and over the phone. He or she will not attend the SARS worksite personally and will not send another MOL employee to the workplace.”
Workers should be advised of the internal responsibility system or if “technical advice” is required, the worker should call Tele-Health Ontario.
Work refusals are to be dealt with in a similar manner.
ONA and OPSEU found this approach by the Ministry be one of the most frustrating and possibly dangerous aspects of the SARS crisis.
It is the unions’ position that a number of events and issues should have triggered Ministry of Labour enforcement activities during the SARS crisis:
• Even before the crisis hit, there were serious problems with enforcement of the OHSA in the health care sector. In January, 2003, months before the SARS crisis, ONA (Erna Bujna) and other Ontario Federation of Labour Health and Safety Committee members met with the Director of the Workplace Insurance Health & Safety Policy Branch, MOL and a number of his colleagues to discuss various outstanding Health and Safety issues. MOL enforcement was discussed, as was the need for MOL Inspectors to have a heightened responsibility to respond when a worker’s right to refuse is limited (s.43 (2) OHSA). Acknowledging that there were problems with lack of enforcement, the Ministry agreed to arrange a meeting between the Regional Directors and Labour to discuss issues around enforcement.
• The large number of HCWs who became ill with SARS as a result of workplace-exposures should have led to an investigation by the MOL. If that many industrial workers suddenly developed a life-threatening work-related illness, both unions believe that the MOL would have launched investigations immediately. The illnesses were constantly in the media, as were reports of shortages of equipment, including respirators.
• The requirement for “fit-testing” of the N95 respirators in the March Directives and then from May forward, should have led the Ministry to inquire whether fit-testing was being done. The Ministry was or should have been aware that Hospitals may have had no previous experience with this procedure, despite requirements that had existed in
Health Care Regulation s.10
since 1993.
• The MOL was involved with the production of the Directives, which should have led to more active scrutiny of their implementation where health and safety was affected.
• There were repeated requests on the part of OPSEU and ONA staff for the MOL to become involved as both unions learned that there were breaches of the Directives and contraventions of the
Act
and the
Regulation. Calls from HCWs to the Ministry about unresolved Health & Safety concerns should have prompted the MOL to enforce its powers under S. 54 of the
OHSA.
Additionally, Ms. Bujna had reported to the joint teleconference meetings attended by MOL officials that critical injuries (SARS) were not being reported to the MOL as per S.51 of the
Act. These failures to report should have prompted an immediate MOL investigation.
Recommendations:
•
That there be an obligation for the MOL to
expeditiously investigate all Health and Safety complaints of workers with limited right to refuse unsafe work
under s.43 (2) of the OHSA and that this be reflected in the Occupational Health and Safety Act.
(OHS decision 94-21 discusses the obligation to investigate expeditiously.)
•
That the Ministry of Labour Policy Manual be amended to include an obligation for MOL inspectors to perform proactive inspections of health care facilities given the dramatic failures of the IRS during the SARS crisis.
•
That the OHSA be amended to reflect that all members of a Joint Health and Safety Committee receive Certification training.
•
That the Ministry of Labour Policy Manual be amended to clarify the role of MOL inspectors when enforcing the OHSA in the health care sector. (e.g. must have a heightened responsibility to respond to workers’ health and safety concerns where workers have a limited right to refuse unsafe work)
•
That the Ministry of Labour Policy Manual be amended to clarify the role of MOL inspectors during a health care crisis that affects workers in any sector.(e.g. ensuring that MOL inspectors fully investigate all events of the crisis that affect workers.)
•
That the MOL Policy Manual be amended to ensure that the Ministry develops a pool of inspectors and hygienists with training and expertise in health and safety hazards within health care facilities
•
Amend the OHSA so that workplaces of a certain size with large number of identified hazards must automatically have one worker member of JHSC dedicated full-time to attend to workplace health and safety issues.(at least in emergencies)
•
That the Regulation for Health Care and Residential Facilities (s.10 (1)) be amended to ensure that worker who need protective equipment are provided with it and receive proper training, fitting and instruction for care and maintenance.
Section 10(1) would state: “A worker who is
or may be required
by his or her employer or by this Regulation to wear or use any protective clothing, equipment or device shall be instructed and trained in its care, use and limitations before wearing or using it for the first time and at regular intervals thereafter and the worker shall participate in such instruction and training.”
4.
Inadequate Infection Control Policies, Protocols And Training
The SARS crisis in Ontario highlighted what both unions believe to be endemic problems in hospital infection control practices. Anecdotal evidence and observation displayed problems with lack of staffing throughout facilities including hospital infection control departments, a lack of, or inadequate infection control policies and procedures, and an apparent lack of knowledge on the part of health care workers about some infection control principles. It appeared that employers did not understand their responsibilities under the OHSA to ensure compliance with infection policies and procedures.
Both unions believe the following examples illustrate some of the most important gaps or problems with infection control practices specifically in the hospital sector. This is not to say that there are not problems elsewhere, particularly in long term care facilities where staff training may be weak and running water for washing hands in patient rooms may not be available. However, since the SARS crisis remained confined to the hospital sector, the following remarks address only that sector.
•
April 20 and 24 Directives to All Acute Care Hospitals Regarding Infection Control Measures for SARS Units: As discussed above in Part 2c of this document, it was not until April 20 and again on April 24 that detailed direction was given on matters such as applying and removing personal protective equipment, minimizing patient contact during patient care activities, removing specimens from patient rooms safely, and housekeeping. These Directives indicated to the unions that the POC, more than one month into the crisis, was finally realizing that some employers, supervisors and workers did not know how to safely implement the previous Directives.
Although some of the requirements in the Directives called for measures that were unusual, such as the requirement for face shields and N95 respirators, other measures such as double-gloving, removing uniforms before leaving hospital, the order in which to remove PPE, when to wash hands, minimizing patient contact, and how to prevent contamination when removing specimens from a patient room, should have been understood and implemented already by infection control departments. This does not appear to have been the case in many facilities.
In retrospect, there appear to have been three main problems: infection control departments in individual facilities did not have the resources to reach out to staff to ensure that they were working safely, both to protect patients and themselves; secondly, prior to the SARS crisis, HCWs seem to have lacked adequate knowledge about infection control procedures which made it difficult for them to implement the stringent SARS controls adequately without instruction and guidance; finally, employers failed to engage their internal responsibility systems, to pull the expertise from their infection control experts and mobilize it using training, supervision and joint health and safety committees to integrate the science of infection control with the principles and practice of an effective health and safety program.
•
Cluster of SARS cases among Protected HCWs: Between April 15 and 21, nine HCWs at Sunnybrook and Women’s Hospital were diagnosed with SARS following exposure to a SARS patient during a complex and prolonged intervention to intubate the patient. The procedure took place in a negative-pressure room and the HCWs were all wearing PPE.
The process of intubating a patient is known to have the potential to generate respiratory secretions that may become airborne. Thus the risks of exposure to the virus are increased either because secretions are briefly airborne and can be inhaled or because they contaminate a surface that a HCW subsequently touches before unconsciously touching her/his mouth, nose or eyes.
In a May 16, 2003, article published in the Morbidity and Mortality Weekly Review, “Cluster of Severe Acute Respiratory Syndrome Cases Among Protected Health-Care Workers -- Toronto, Canada, April 2003,” the authors speculate that: “Direct contact with the patient or contact with an environment contaminated by large respiratory droplets might have led to HCWs infecting themselves as they removed their PPE.” The article goes on to state: “Many HCWs
apparently lacked a clear understanding of how best to remove PPE without contaminating themselves”
(emphasis added). The article calls for proper training of HCWs in the correct use and removal of PPE and to remind HCWs “of the importance of hand hygiene.” This is the same article that notes that the patient’s primary nurse wore a small beard and that the nurse reported that he could sometimes feel air entering around the sides of the mask.
This event that tragically resulted in HCWs contracting SARS more than a month after the original SARS crisis was declared, points to a serious lack of infection control knowledge that predates the crisis. Why did HCWs not understand how to remove their PPE in the correct order? Even though they were wearing more equipment than they may have been used to, a basic understanding and logical application of infection control principles as required by section 8 and 9 of the
Health Care Regulation, should have allowed them to figure out how to accomplish this safely. In accordance with legislative requirements, employers should have ensured training in the use of equipment and application of infection control principles. Additionally, if workers were confused, their supervisors and employers had a responsibility to ensure the confusion was addressed. If trained properly as required under the
OHSA, all HCWs should have understood that if they were offered a mask for respiratory protection, the mask would have to fit their face tightly to be able to give that protection. Yet it was not until well into the crisis, that HCWs began to request that they be fit-tested for their respirators. As documented earlier, both unions received complaints that employers initially resisted these requests.
•
Observations of faulty infection control practices: Throughout the crisis, but especially in the early days, all of us who watched television or walked past a hospital in the GTA were witness to the same images – HCWs outside their hospitals with their N95 mask either perched up on top of their head, or dangling from its elastic straps around their necks. HCWs were seen wearing their isolation gowns overtop of their scrub suits or uniforms outside the facility. In the coffee shop across the road from the Women’s College site of Sunnybrook, HCWs were coming in to buy lunch fully suited up in their isolation garb.
These actions indicate a lack of basic understanding of infection control principles. Alarmingly, it indicates that supervisors and employers also lacked basic infection control knowledge since these dangerous practices were allowed. HCWs outer garb - masks, gowns, gloves – if it was worn inside the hospital, must all be considered contaminated, and must be removed either when leaving the patient room, or the unit, depending on the protocol in place. The April 20 POC Directive advised, “All staff assigned to the SARS unit should wear a clean surgical scrub suit or other uniform that is laundered by the hospital (to be removed before leaving the hospital after each shift)...” If employers had made infection control a priority, which should be an integrated part of their health & safety program, previous to the SARS crisis this advice would have been unnecessary. Employers/supervisors and HCWs would have known that wearing uniforms home after working in an environment with a highly contagious and potentially fatal virus was unsafe.
•
The State of Infection Surveillance and Control in Canadian Acute Care Hospitals
(Dick Zoutman, et. al.,
American Journal of Infection Control, Aug.2003, Vol.31, No.5, p.266-273): Just as SARS II was winding down, this article, the first assessment of infection surveillance and control measures in Canadian hospitals in 20 years, was published by AJIC. The evidence presented in the article verified personal experience and observations about infection control practices in Ontario hospitals. One hundred seventy-two of 238 (72.3%) hospitals responded to a survey that requested information on what are considered to be the essential components of effective infection control programs.
The study reports that in approximately 42% of hospitals there were fewer than one infection control practitioner per 250 beds (an effective program should have at least one per 250 beds); additionally approximately 40% of infection control programs did not have appropriately trained professionals to provide services. The study points out that, “Nosocomial infections are second only to medication errors in frequency among adverse events befalling hospitalized patients” (p.266). In addition, “Nosocomial infections and antibiotic-resistant pathogens cause significant morbidity, mortality, and economic costs” (p.266). (Note: the rise of antibiotic-resistant infections is usually considered to be the result of over-prescribing antibiotic medications and poor infection control practices.)
The study concludes: “There were deficits in the identified components of effective infection control programs. Greater investment in resources is needed to meet recommended standards and thereby reduce morbidity, mortality and expense associated with nosocomial infections and antibiotic-resistant pathogens” (p.266).
It should be noted that the survey found that over 97% of hospitals had infection control manuals and 83% of hospitals had programs for teaching and updating staff on infection control practices (p.269). Given the recent experience of the SARS crisis, there is an obvious need for further research into the content of these infection control manuals and the effectiveness of hospital teaching programs.
•
Personal nursing experiences: Ms. Lisa McCaskell nursed in two general hospitals between 1979 and 1990, working as a bedside nurse and a nursing supervisor. Following are a number of points that Ms. McCaskell believes have contributed to the decline in good infection control measures:
o
when the majority of HCWs held full-time jobs, hospitals provided change rooms and lockers where it was expected that you would change into uniforms including shoes, before coming to start your shift. It was also expected that one would change back into civilian clothes before leaving for home. As full-time workers have become scarcer and the work-force casualized, HCWs often hold many jobs. Access to lockers and change rooms has become limited and many workers come and go from hospitals in their uniforms.
o
when Ms. McCaskell first started nursing, Universal Precautions, as a means of infection control did not exist. Nurses and other HCWs cared for various infectious diseases - TB, meningitis (both droplet borne), gastrointestinal illnesses, hepatitis, etc. At that time, HCWs took different precautions according to the route of transmission. Patients were placed on isolation, instructions for staff were placed on each infectious patient’s door, necessary PPE was provided and workers were instructed on how to proceed. It appears that with hospital downsizing, cutbacks in infection control staff, and an assumption that Universal Precautions will protect staff from every infection, that knowledge has been lost and staff are no longer properly instructed.
o
as the incidence of TB declined in the 1980s and 1990s (with exceptions among some populations), it appears that concerns about airborne or droplet borne respiratory infections have also declined. Concurrently, it appears that HCWs knowledge about these illnesses and how to protect themselves, has also declined. Health Canada guidelines published in 1994 advised that HCWs should wear properly fitted N95 masks when caring for patients with suspected and/or active tuberculosis. Yet as evidence in this document demonstrates, neither union encountered one employer who had ensured that any health care worker had been fit tested as per section 10 of the 1993
Health Care Regulation
or the Health Canada guidelines prior to the SARS crisis.
• Throughout this document, problems with infection control practices, policies, knowledge and training have been demonstrated. In every instance where a worker’s health and safety is placed at risk because they lack knowledge, adequate instruction, or the proper equipment, patients’ health and safety are also placed at risk. Although these submissions are focused on worker health and safety, it must be understood that if employers were taking all precautions reasonable to protect worker health and safety (OHSA s.25 (2) (h)), that patients would also be safer. For example, if a worker contaminates herself/himself taking off PPE, she/he may go on to contaminate someone or something else that a patient may touch. If an x-ray tech is not instructed on how to clean a portable machine and given the materials and time to clean it properly, she/he is at risk, but so is the next patient she/he visits. Example after example can be given to demonstrate that the two issues – infection control and worker health and safety – are inseparable and simply reflections of each other.
Recommendations:
•
That the SARS Commission recommend the creation of a national centre for disease control that would be modeled on the U.S. Centers for Disease Control and Prevention. The mission of a Canadian centre for disease control would be to provide research-based information and education on infectious disease control and prevention for the people of Canada.
•
That the SARS Commission recommend that MOHLTC increase funding to public hospitals, targeted at improving infection control programs within those hospitals in order that they can implement evidence-based recommendations that have been proven to prevent infection. A vital component of infection control programs must be appropriate training of all health care workers.
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That JHSCs are consulted with and have input into the development of all infection control policies and programs including training as per section 8 and 9 of the Health Care Regulation
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That supervisors are trained and maintain their competency regarding their legislated responsibility to ensure that infection control practices are followed in the workplace.
ORDER IN COUNCIL – WALKERTON INQUIRY
Ontario
Executive Council
Conseil exécutif
On the recommendation of the undersigned, the Lieutenant Governor, and by and with the advice and concurrence of the Executive Council, orders that:
A number of people have died or became ill in circumstances where Escherichia coli bacteria have been found in the water supply in that part of The Corporation of the Municipality of Brockton formerly known as the Town of Walkerton.
Under the
Public Inquiries Act, R.S.O. 1990, c. P. 41, the Lieutenant Governor in Council may, by commission, appoint one or more persons to inquire into any matter of public concern, if the inquiry is not regulated by any special law and if the Lieutenant Governor in Council considers it desirable to inquire into that matter.
The Lieutenant Governor in Council considers it desirable to inquire into the following matters of public concern. The inquiry is not regulated by any special law.
Establishment of the Commission
1. A commission shall be issued effective June 13, 2000, appointing the Honourable Dennis R. O’Connor as a commissioner.
Mandate
2. The commission shall inquire into the following matters:
(a) the circumstances which caused hundreds of people in the Walkerton area to become ill, and several of them to die in May and June 2000, at or around the same time as Escherichia coli bacteria were found to be present in the town’s water supply;
(b) the cause of these events including the effects, if any, of government policies, procedures and practices; and
(c) any other relevant matters that the commission considers necessary to ensure the safety of Ontario’s drinking water;
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