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Policy decision finalized at the March 2009 WorkSafeBC Board of Directors meeting
The following Resolution was finalized by WorkSafeBC's Board of Directors in March 2009. For information about the function and mandate of the Board of Directors, please see Governing Structure.
- Short-Term Average Earnings for Variable Shift Workers Policy Changes
- Administrative Penalties – Amount of Penalty Policy
Short-Term Average Earnings for Variable Shift Workers Policy Changes
At its meeting on March 25, 2009, the Board of Directors approved changes to policy items #65.00, #65.01, #65.02 and #65.03 of the Rehabilitation Services & Claims Manual, Volume II. These policies provide direction for determining a worker’s short-term average earnings.
The changes to the Variable Shift Workers policy include:
- adding on-call workers who are regularly employed at differing rates of pay;
- using a period of three months or less to calculate the short-term average earnings;
- excluding periods of reduced earnings from the short-term average earnings calculations; and
- renaming the policy to “Variable Earnings”.
Changes have also been made to the above noted policies to ensure that the language of the policies reflects the language of the Workers Compensation Act.
The changes are effective June 1, 2009. You may examine the complete resolution (PDF 46kb).
For further information on this issue, please contact Rachel Fisher at 604 276-5160.
Administrative Penalties – Amount of Penalty Policy
In February 2009, in two separate decisions, a Vice Chair of the Workers’ Compensation Appeal Tribunal ("WCAT") determined that part of the prevention policy on administrative penalties was patently unreasonable. By way of background, the primary factors used to calculate the amount of an administrative penalty in Policy D12‑196‑6 are the nature of the violation, the compliance history of the employer, and the assessable payroll of the employer. The WCAT Vice Chair's decisions focused on the year of assessable payroll that is used for calculating the amount of a penalty. The policy said the penalty is based on the assessable payroll for the most recent full year at the time the penalty is imposed.
The Policy and Research Division has the Board of Directors’ authority to bring issues forward to them where amending the language of a policy will ensure there is clarity in the application of the policy.
The intent of the policy is to base an administrative penalty on factors that are relevant at the time of the incident or violation in order to motivate employers to comply. If an administrative penalty is imposed reasonably close to the event giving rise to the penalty, the intent of the policy is achieved. However, when there is a significant time gap between the incident giving rise to an officer's decision that the penalty is warranted and the date the penalty is imposed, an anomaly can occur. Lengthier periods of time in the application of the penalty can be caused, for example, by the complexity of the investigation and the assessment of evidence, the number of witnesses to be interviewed, and the accessibility of witnesses. If the employer’s payroll has changed significantly during a lengthy investigation, the amount of the penalty can also change, based on this later change in payroll.
In order for the policy to achieve its intended result in all circumstances, it has been amended to clarify that the relevant payroll for calculating an administrative penalty is the employer’s assessable payroll for the year immediately preceding the year in which the incident giving rise to the penalty occurred. This change was made to eliminate the potential anomaly. WorkSafeBC does not agree that the former policy was patently unreasonable.
Aside from the issue raised in the WCAT Vice Chair's decisions, there are some situations where it is necessary for WorkSafeBC to estimate an employer’s assessable payroll for the previous year in order to calculate a penalty. The former policy did not make any provision for this circumstance and it has been amended to provide for using an estimate of assessable payroll where necessary.
View the resolution (PDF 56kb).
For more information on this policy, please contact 604 276‑5160.