Occupational Health and Safety and the Precautionary Principle Collective Bargaining Language REVISION July 2007
Introduction The precautionary principle is an approach to eliminating hazards before they cause harm. Simply put, the philosophy behind precautionary principle reads, when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The precautionary principle has been used internationally, primarily around issues of environmental concern. One of the most important times the principle was used was at the 1992 United Nations Conference on Environment and Development. The precautionary principle was incorporated into a declaration passed at the conference which stated: In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. The principle of precautionary action has four parts: People have a duty to take action to prevent harm before it happens. If there is a reasonable suspicion that something bad may happen, then there is an obligation to try to prevent it. The burden of proof of harmlessness of a new technology, process, activity, or chemical lies with those who wish to use or introduce it, not with the public or workers. Before using a new technology, process, or chemical, or starting a new activity, people have an obligation to examine a full range of alternatives including the alternative of doing nothing. Decisions applying the precautionary principle must be opened, informed, and democratic and must also include affected parties. The precautionary principle is not really new. The essence of the principle is captured in common sense aphorisms such as an ounce of prevention is worth a pound of cure, better safe than sorry, and look before you leap. These were the thoughts of public health officials in the 1920s when the petrochemical and automobile corporations announced they were going to start putting lead into gasoline. Public health officials argued that this should be delayed and possible repercussions studied. The corporations argued that, in the absence of convincing evidence of widespread harm, they had the right to proceed. In the end, the corporations won out and this set the 1
standard for corporate behaviour for the next fifty plus years. Industrial chemicals were given the equivalent of civil rights where they were treated as innocent until proven guilty. In the face of scientific uncertainty, corporations have been allowed to proceed with dangerous activities until sufficient evidence has been gathered requiring those corporations to implement control measures. Millions of people and our environment have suffered as a result. While this principle has primarily been used internationally around environmental health issues, other groups are adopting this philosophy to protect the health of workers. In 1996, the American Public Health Association passed a resolution entitled, The Precautionary Principle and Chemical Exposure Standards for the Workplace. This resolution recognized the need for implementing the precautionary approach, including the shifting of burdens of proof of every chemical considered potentially dangerous until the extent of its toxicity is sufficiently known, and the establishment of strict, preventive chemical exposure limits. Labour has argued for many of the key parts of the precautionary principle long before the term was coined but in November of 1999 delegates at the OFL Convention debated and passed a policy paper entitled Occupational Disease: Shifting the Burden, in it was a section on the Precautionary Principle and an action plan which called on the OFL and its affiliates to lobby for legislative changes to include the precautionary principle approach to the introduction of new substances, process or job designs into a workplace. SARS Commission On January 9, 2007, the final report of the SARS Commission was released to the public. The Commissioner was Justice Archie Campbell of the Superior Court of Justice. This commission was established by the Ontario Government as an independent investigation into the introduction and spread of Severe Acute Respiratory Syndrome (SARS) which swept through Ontario during the spring of 2003. SARS killed 44 and resulted in approximately 330 cases of serious lung diseases. The title of the final report is Spring of Fear. The final report looked at occupational health and safety in the health care sector but the first recommendation made in the report shows the broad support for the precautionary principle approach. It reads as follows: The commission therefore recommends: That the precautionary principle, which states that action to reduce risk need not await scientific certainty, be expressly adopted as a guiding principle throughout Ontario s health, public health and worker safety systems by way of policy statement, by explicit reference in all relevant operational standards and directions, and by way of inclusion, through 2
preamble, statement of principle, or otherwise, in the Occupational Health and Safety Act, the Health Protection and Promotion Act, and all relevant health statutes and regulations. Throughout the report the commissioner was unequivocal about the importance of this principle. Here are the key examples: If the Commission has one single take-home message it is the precautionary principle that safety comes first, that reasonable efforts to reduce risk need not await scientific proof. Ontario needs to enshrine this principle and to enforce it throughout our entire health system. Pg 13 Perhaps the most important lesson of SARS is the importance of the precautionary principle. SARS demonstrated over and over the importance of the principle that we cannot wait for scientific certainty before we take reasonable steps to reduce risk. This principle should be adopted as a guiding principle throughout Ontario s health, public health and worker safety systems. Pg 24...we should not be driven by the scientific dogma of yesterday or even the scientific dogma of today. We should be driven by the precautionary principle that reasonable steps to reduce risk should not await scientific certainty. Pg 29 In trying to define the principle, Justice Campbell relied on the report of another commission. The Krever Report was an inquiry on the Blood System in Canada. In that report Justice Krever said: Where there is reasonable evidence of an impending threat to public health, it is inappropriate to require proof of causation beyond a reasonable doubt before taking steps to avert the threat. Unions in all sectors should recognize the potential impact of the occupational health and safety recommendations for all workers in Ontario. The adoption of the Precautionary Principle into the Occupational Health and Safety Act would mean a dramatic improvement in workplace health and safety and public policy development. The long history of the fight for occupational health and safety in Ontario has demonstrated time and again that we will only get what we are strong enough to take. Labour has launched a struggle to see the precautionary principle enshrined in law. We also know that what we get from one government can be taken away by the next so we are also providing this material as a resource to negotiate the precautionary principle in our collective agreements. 3
Sample language The examples here will focus on taking action for prevention, substitution and meaningful consultation with those affected by decisions of the employer. Defining the Precautionary Principle Where there is reasonable evidence of a health and safety hazard, steps must be taken to avert the threat. Employer responsibilities The employer agrees that in making decisions which affect occupational health and safety, it will use as its guiding principle, the precautionary principle. The employer agrees to explicitly use the precautionary principle in all relevant operational policies, plans, procedures, standards and directions. These shall be developed and reviewed in consultation with the joint health and safety committee. Hazardous substances The employer agrees that no new substance, material, agent or chemical shall be introduced into the workplace environment without a complete review by, and approval of the joint health and safety committee, of its ingredients and/or properties. The employer agrees that where a hazardous substance is in use for any purpose at the workplace and an equivalent substance that is less hazardous is available to be used for that purpose, the equivalent substance shall be substituted for the hazardous substance where it is possible to do so. Priority shall be given to those substances which are proven or suspected carcinogens, reproductive toxins, neurotoxins, and lung sensitizers. Should it not be possible to substitute a substance, the employer agrees to maintain exposure of the substance at the technically lowest possible level and will aim for zero exposure for carcinogens. Protective reassignment The employer recognizes the importance of a work environment which safeguards the reproductive health of all workers. The employer agrees to work to eliminate hazards where there is evidence that it may pose a risk to foetal development. Where it is not possible to eliminate the hazard, accommodations with no loss of pay and benefits will be provided. Such accommodations will be 4
provided for pregnant and nursing women or for women and men planning to conceive and will reasonably be within their abilities to perform. Accommodations shall be made for women until the pregnancy or nursing has terminated. Accommodations shall be made for men until conception has been successful. Joint Health and Safety Committee When reviewing issues or making recommendations to the employer, the committee will use the precautionary principle, which states that action to reduce risk need not await scientific certainty. Pandemic Planning Recognizing that a Pandemic will affect all workplaces, the employer agrees to prepare a pandemic plan in consultation with the joint health and safety committee. The precautionary principle will be used as the guiding principle in preparing the plan. Ventilation Where the work process requires the use of ventilation, the employer agrees to install and maintain ventilation in accordance with the best available technology such as described in the latest edition of the American Conference of Governmental Industrial Hygienists, Industrial Ventilation Manual. Personal Protective Equipment The precautionary principle will be used as the guiding principle in the selection of the personal protective equipment. The selection of the equipment shall be done in consultation with the joint health and safety committee. Where respirators are necessary, workers will be trained in the care and use of the respirator and shall be fit tested to ensure it will maintain full protection. cope343 5