|
Following up the questions and answers on The 'Rules' in British Columbia further correspondence ensued. From: The inquirer who prefers to remain unidentified for obvious reasons. To: Regional Services, Prevention
Division Coquitlam Office, Region 52.20 Dear (name of Workers Compensation Board correspondent): Thank you for the information. ( WCB message, 25 March 2002) My main concern was the three municipalities that had (have) the 70% smoking...30% non-smoking split. I was wondering why,as you are now stating, " the most stringent" of the local smoking regulations would over-ride the new, government amended WCB regulations. I have read the Worksafe website. I did not notice where it was stated that the new regulations would over-rule current smoking bylaws. In fact it is very different from what you have stated to me here and in the Worksafe kit sent out to hospitality venues. There is a chance you may see the new regulations challenged (legally) because of this omission. A couple more final questions: If I choose not to build a smoking room (as per Vancouver's own city bylaw), the city must "police" the bylaw and not the WCB? If I am paying premiums the same as other businesses who have adopted the WCB government mandated regulations, why would my business not be offered or afforded the same service and my workers the same protection from the WCB ? In Vancouver and Burnaby, in 2 separate judgements in municipal court, both judges ruled that business owners and employees do not have to be the "smoke-police." The onus is on the municipality to enforce it's own bylaw regulations. Those cases were never appealed. They were heard shortly before the WCB province-wide ban was enacted Jan 01 2000. They were never challenged and still stand. So let me get this straight. If a business owner owns a place in Vancouver where non-compliance is very high regarding their current smoking bylaw - the city (Vancouver) has chosen not to adopt the new WCB-government mandated regulations. Even though the current standards are 100% non-smoking plus the allowing of small, ventilated, separate smoking rooms. (Much smaller smoking space than the new WCB-government regulations). If the City will not "police" their own smoking bylaws, which they can't and won't, the onus falls upon them to do so as per the municipal court ruling in 1999. If I am paying the same WCB premiums why, will my workers not be protected with the help of the WCB the same way they would in next-door Burnaby? Burnaby business owners will have obvious an advantage for businesses that choose to be non-smoking,when compared to those in Vancouver. Even though Vancouver has a lesser tolerance for allowing smoking than the new WCB regulations,they cannot enforce their bylaw.Many businesses bars,restaurants and clubs are violating the city bylaws without penalty. This would mean business owners in most municipalities who wish to ignore their (current) local bylaws and allow smoking everywhere within their businesses, (in the other 23 municipalities that already have 100% non-smoking bylaws, some allow for rooms) would be better off than say Burnaby, Maple Ridge, and Coquitlam - whose existing bylaws will be over-ridden by the new government mandated WCB regulations. Businesses in these locales would have to build smoking rooms that meet the WCB-government regulations, while those in many of those in (areas) e.g. Vancouver, will continue to allow smoking as they do now. What I want to know is, if this truly is a "worker's health issue" province-wide how can the WCB allow local governments to compromise the health of their employees by retaining current smoking bylaws they cannot enforce? The smoking regulations are supposed to be province-wide. If WCB premiums are paid by workers in one of the 23 municipalities, excluding Burnaby, Maple Ridge and Coquitlam, how do they rate any less protection than communities and municipalities that do not have current smoking bylaws as stringent or stronger than the new WCB government mandated smoking regulations? Regulations which the WCB shall enforce in other "selected" communities. City bylaw fines will never even come close to matching the WCB's fines in dollar value. So in locales that are forced to adopt the new WCB-government smoking regulations, in short, will be getting better service and protection than the communities with current smoking bylaws that have chosen not to adopt the WCB regulations. Even though most of the municipality bylaws are 100% in name, they are not worth the paper they were drafted upon in regards to enforcement or compliance. I have talked to many people on both
sides of the fence regarding the new smoking regulations. I think you will be
seeing legal challenges regarding the new smoking regulation's ambiguity and
vagueness . From both sides - pro-smoking and anti-smoking. Regards, |
The response
|
From: Workers Compensation
Board Dear (name) You have a lot of questions. They can be best answered as follows: * every workplace that employs workers must follow the OHS Regulations and the WC Act to ensure a safe workplace. * this means that the new ETS regulations are in effect at all workplaces covered by WCB regardless of any other requirements such as municipal bylaws * there is no opting out by an employer from this legal obligation * therefore, if you have workers you cannot opt out of WCB coverage or chose to ignore WCB rules and regulations * the City of Vanc or any other city or municipality has no influence over the WCB - employer legal arrangement. * they can only enforce their own bylaws * the city cannot chose to ignore the WCB-ETS regulation; they have zero jurisdiction over the WCB regulations, how they are applied and enforced * I did state in an earlier email to you that the most stringent requirement will prevail in a particular municipality; what I meant by that is that if a municipality's smoking bylaw is more restrictive than the WCB-ETS regulation (such as requiring 100% no-smoking), then the pub owner in that municipality should adhere to the requirements of that bylaw. From the WCB's perspective, if the pub owner is in compliance with the local bylaw and the pub is 100% smoke-free, then the pub is in compliance with the WCB-ETS requirements also. If the pub owner in that municipality chooses to adopt the WCB-ETS requirements and to ignore the local bylaw for 100% no-smoking, the pub owner is still in compliance with the WCB requirements. Then the issue is between the local bylaw enforcers and the pub owner. * effective and consistent enforcement of the WCB-ETS regulation for all pubs will go a long way to creating a level playing field for all pub owners no matter where they are located in BC. (signed) |