‘This thing is full of inconsistencies,” said Doug Rody on Tuesday, pounding his thick finger into the recently released Yukon Workers’ Compensation Act review.
The Yukon Federation of Labour executive director spent the weekend poring over the 238-page document. His copy was marked with red notes scribbled in the margins of each page.
A major stumbling block, said Rody, was the document’s confusing and contradictory language.
In one part, the document said employers should not “be subject to fines and penalties to gain compliance.”
But then, in another part, the panel recommended creating a system that punishes employers for defiance, said Rody.
Four years in the making, the tome, which recommends changes to the act that guides how the territory’s injured workers are treated and compensated, was publicly released last week.
The review deals with 88 issues and makes more than 45 recommendations for legislative change.
It deals with myriad issues, including recalculating the maximum wage rate — the highest amount of pay an injured worker can receive in a year — so it would be “hinged on the state of Yukon’s economy.”
And making the Yukon Workers’ Compensation Health and Safety Board’s files accessible under the Access to Information and Protection of Privacy Act.
In crafting the recommendations, the review panel — composed of worker advocate Mike Travill and employer rep Ivan Dechkoff — held a series of meetings and analyzed eight written submissions from stakeholders, like the Public Service Commission and the Human Rights Commission.
One of them was a joint submission drafted by the Whitehorse Chamber of Commerce, the Yukon Chamber of Commerce, the Workers’ Compensation Health and Safety Board and the Federation of Labour.
Over months of meetings the business and labour groups teamed up to draft a set of recommended changes to the act.
The review panel agreed with about half the suggestions in the joint submission.
One of the document’s key recommendations, which targets the rates employers pay for workers’ compensation coverage, was a point of contention for Rody.
The panel proposed an incentive system, called an “experience rating,” that rewards safe, progressive employers and punishes lax ones.
So, employers with fewer injuries and diligent return-to-work programs for employees hurt on the job could pay as little as half their industry’s average assessment rate.
And employers with lots of injuries and no return-to-work programs could pay up to double.
The idea is based on a system already in place in BC.
The program would make it an employer’s choice to pay lower or higher assessment rates, said Dechkoff.
But Rody saw a problem with the program.
“The penalty is applied after the fact and people don’t think that way,” he said.
Overall, the panel’s recommendations are meant to make the act simpler and clearer, said Travill.
Each change to the act will affect a slate of other aspects of the system.
So the panel looked at the system as a whole, he said.
Many of the recommendations simply took existing workers’ compensation policies and entrenched them in legislation.
Adding the policies into the act will make the process simpler, clearer and easier to follow, said Travill.
Rody disagreed.
Including detailed policy in the legislation doesn’t allow for much-needed flexibility, said Rody.
“Eventually it’s going to be out of date and you’ll have to amend the act to change it — that was the whole point of a policy,” he said.
For example, one section of the document recognized that adding a claims-management policy to the legislation would “eliminate some of the flexibility and discretion required for complex claims” and “preclude the board from amending the model as knowledge in this area evolves.”
But the panel recommended the policy anyway.
“It doesn’t make sense,” said Rody.
Travill and Dechkoff were appointed by the minister to review the act.
They spent four years researching and three months writing the dense document.
Its executive summary is 61 pages long.
The pair struggled on each issue to find a balance that was fair to both employers and employees, said Dechkoff.
“I think it’s noteworthy that we agreed on 87 out of 88 issues.”
The sole issue the pair couldn’t agree on was calculating an injured worker’s wage-loss benefit.
So they included two conflicting recommendations in the document.
The first recommends no change to the existing legislation, which calculates a worker’s compensation at 75 per cent of their gross wages.
The second recommends calculating compensation at 85 per cent of a worker’s weekly net earnings instead.
That change would bring the Yukon in line with other jurisdictions, which base their calculations on net rather than gross income, according to the review document.
It could also save the system $2 million per year.
But there is no evidence to back that up, said Rody.
“They pulled that figure out of the air,” said Rody.
This week, the review panel came under fire from a number of sources for releasing the report to the stakeholders at the same time it was handed to the minister.
The Workers’ Compensation Act Review website stated: “Recommendations will be finalized and accepted by the minister,” and, “final amendments, additions, and deletions will be presented to the minister and cabinet for approval.”
But the panel released the report to the minister, the stakeholders and the media at the same time.
Why?
The pair was working under the minister’s direction.
In a meeting earlier this year, Cathers instructed the panel to release the report en masse.
“We played no favourites, there was no leaking,” said Travill. “There was nothing nefarious.”
Meanwhile, Brad Cathers, minister in charge of the Yukon Workers’ Compensation Board, and the stakeholders are reviewing the recommended changes.
“I look forward to meeting with stakeholders in the near future to review these recommendations, as well as the joint submissions from the major stakeholder groups reflecting their agreement on over 80 issues,” Cathers wrote in an e-mail sent to local media.
Any changes to the act must be legally drafted and approved by Yukon’s legislature.
Whitehorse Chamber of Commerce president Rick Karp was unable to comment on the recommendations before press time Wednesday.