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Bill C-243 champions expectant mothers who refuse unsafe work

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by Peter Kenter

Private member's bills usually die a quick death. However, Bill C-243, The National Maternity Assistance Program — a bill to improve the benefit structure for women who perform dangerous jobs — has shown resilience. The bill has attracted cross-party support and the endorsement of construction groups, including the Canadian Construction Association, the National Trade Contractors Coalition of Canada (NTCCC) and Canada's Building Trades Union.
Bill C-243 champions expectant mothers who refuse unsafe work

The Bill was tabled on Feb. 26, 2016 by Mark Gerretsen, Member of Parliament for Kingston and the Islands. It was inspired by Melodie Ballard, a Kingston welder who could not collect employment insurance (EI) under existing rules when her workplace presented a hazardous environment to her unborn child.

At the time, EI offered 15 weeks of maternity benefits as early as eight weeks prior to expected confinement to bed, or when the child is born, whichever comes earliest. Ballard was informed by her doctor that the welding environment posed a health risk to her unborn child long before the eight-week period began. Her only option was to apply for less generous EI sickness benefits.

Gerretsen notes that Ballard was pregnant, not sick, and that sickness benefits ran out before EI maternity benefits began. Bill C-243 proposed to allow a shift of maternity benefits by as many as 15 weeks, provided the employer could not offer modified safe work. Eligible claimants would provide a medical certificate indicating the work may pose a risk to the claimant's health or to that of her unborn child.

Sean Bawden, a partner with Kelly Santini LLP in Ottawa, notes that the Supreme Court of Canada determined in 2014 that pregnant women have the legal right to refuse work that is considered harmful because of pregnancy (Dionne v. Commission scolaire des Patriotes, 2014 SCC 33).

"It's not that the work is inherently unsafe," he says.

"It's that it's temporarily unsafe to pregnant or nursing women. However, although you have the right to refuse unsafe work, you're not guaranteed that you'll be paid for it. That's what the bill is trying to address."

Bill C-243 was reported back from committee in May and included several amendments.

The most significant was to remove the EI provisions of the bill," says Gerretsen. "Budget 2017, which was introduced the day before the committee started its study, included very similar changes to what was being proposed in Bill C-243."

Gerretsen agreed to drop the EI provision because the budget now allows claimants to access maternity benefits up to 12 weeks before delivery.

"However, the committee did keep the second part of the bill, which calls on the government to develop a national strategy on maternity assistance for women working in dangerous jobs," he says.

Gerretsen's ultimate goals — to help women such as Ballard collect benefits, but also to remove barriers that may prevent women from seeking careers in skilled trades.

"Shortage of skilled workers is an ongoing matter for the industry," says Chris Atchison, president of the BC Construction Association.

"At present, women make up only four per cent of the construction work force. We need that number to be higher. If we don't improve conditions, we can't attract the workers we need."

The Canadian Automatic Sprinkler Association was one of the first to endorse the bill.

"We were talking to MP Gerretsen about prompt payment legislation and he picked our brains about possible maternity benefit legislation," says president John Galt.

"We told him that it was something we could support easily. I'm also chair of the NTCCC. When the trades discussed the bill, it was a no-brainer for us to support."

Galt notes that sprinkler industry work once required a level of physical strength that discouraged female job applicants. Lighter pipes, and scissor lifts have levelled the playing field.

"With barriers to employment eliminated, we still need to make maternity leave easier," he says.

The Minister of Employment is now being called on to develop a comprehensive strategy to ensure that pregnancy is not a barrier to a woman's full and equal participation in the labour force.

"However, this doesn't directly prescribe any specific changes or additional spending," says Gerretsen.

Such a study is likely to reference Quebec's independent maternity leave framework, For a Safe Maternity Experience. It allows "preventive withdrawal" of affected workers presenting a medical certificate indicating a work environment is hazardous.

The Commission des normes, de l'équité, de la santé et de la sécurité du travail can provide continuous benefits to a pregnant or nursing mother at 90 per cent of salary. Benefits can also dovetail with those of the Québec Parental Insurance Plan, which normally kick in five weeks before the expected due date.

However, an expanded federal maternity program should consider potential conflicts, says Bawden.

"Arguably, you could have a case where Service Canada is giving you EI on the basis that you were being reasonable in refusing unsafe work, but the provincial regime says 'no,' " he says.

Depending on the final form of the Bill, EI benefit uptake might also increase.

"My sense is that employers might see a whole lot more workers willing to assert their rights to refuse unsafe work with a financial entitlement attached to it," Bawden says.

He says he doesn't see potential reforms as the thin edge of a wedge to ultimately cover male workers.

"I don't think the federal government wants to encourage a situation in which all workers can simply go on EI after refusing unsafe work, and the employer is under no obligation to remedy the situation," he says.

Gerretsen notes that continued public support will be a key to getting a bill passed.

"The feedback we received from construction and skilled trades groups was extremely positive," he says.

"There's definitely an interest in finding ways to level the playing field so that more women can participate in these so called 'non-traditional' jobs."

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