Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Asbestos Convention, 1986 (No. 162) - Canada (Ratification: 1988)

The Committee notes the detailed information provided by the Government in its latest report in response to the comments by the Canadian Labour Congress (CLC) in 2010, to the conclusions of the Conference Committee in 2011, as well as to the comments by the CLC and by the Confederation of National Trade Unions (CSN) attached to the Government’s 2011 report.

Follow-up to the conclusions of the Conference Committee on the Application of Standards (International Labour Conference 100th Session, June 2011)

The Committee notes that, following the discussion of this case in the Conference Committee on the Application of Standards, which highlighted the importance of adopting the strictest standards limits for the protection of workers’ health as regards exposure to asbestos and noted that the Convention placed an obligation on governments to keep abreast of technical progress and scientific knowledge, which was particularly important for a country like Canada which is one of the main producers of asbestos. It also requested the Government to continue to provide all relevant information to the Committee of Experts for its review, including statistical data on health protection measures and cases of occupational diseases caused by exposure to asbestos and invited the Government to engage in consultations with the employers and workers’ organizations on the application of Articles 3(3), 4 and 10 of the Convention, in particular taking into account the evolution of scientific studies, knowledge and technology since the adoption of the Convention, as well as the findings of the World Health Organization (WHO), the ILO and other recognized organizations concerning the dangers of exposure to asbestos.

Legislative measures and other measures undertaken. The Committee notes the information provided by the Government regarding legislative developments in British Columbia and Ontario. According to this information in British Columbia Schedule B of the Workers Compensation Act has been modified to provide for presumptions in favour of workers who have primary-site lung cancer where there is airborne exposure to asbestos dust associated with bilateral diffuse pleural thickening over 2 mm thick and who have been exposed to airborne asbestos dust for a period of ten years or more of employment in one or more of the following industries: asbestos mining, insulation or filter material production, construction (where there is disturbance of asbestos-containing materials), plumbing or electrical work, pulp mill work, shipyard work, and long shoring. It notes further that Ontario Regulation 833 Respecting Control of Exposure to Biological or Chemical Agents under the Occupational Health and Safety Act has been amended to provide for an exposure limit to all forms of occupational exposure to asbestos of 0.1 f/cc and that firefighters and fire investigators are also subject to the exposure limits prescribed for asbestos.

Article 3(1–2) of the Convention. Measures to be taken for the prevention and control of health hazards due to occupational exposure to asbestos and periodical review in the light of technical progress and scientific knowledge. Article 4. Consultations with the most representative organizations of employers and workers. Article 10. Replacement of asbestos and total or partial prohibition of the use of asbestos. The Committee notes the detailed information provided by the Government regarding measures taken to prevent and control health hazards due to occupational exposure to asbestos in Alberta, British Columbia, New Brunswick, Newfoundland, Labrador, Manitoba, Ontario and Saskatchewan.

The Committee further notes that the Government states that, in conducting reviews and updating laws and regulations related to workplace asbestos exposure, provincial governments rely on available scientific data and technical knowledge including the most up-to-date information from the American Conference of Government Industrial Hygienists and from other scientific sources which may be cited by participating worker and employer representatives and technical experts and that in all Canadian jurisdictions, reviews of occupational safety and health laws and regulations are undertaken in consultation with representatives of workers and employers, in full compliance with Article 4 of the Convention. The Government refers to the current federal review of Part X of the Canada Occupational Health and Safety Regulations on Hazardous Substances being conducted by a tripartite working group, which includes representatives of the CLC. The federal Workplace Hazardous Materials Information (WHMIS), implemented in 1988, was developed by a tripartite steering committee with membership representing the federal and all the provincial and territorial governments, industry and labour. New Brunswick has established a Technical (Stakeholder) Committee to review occupational hygiene issues including threshold limit values for asbestos and the regulation on a code of practice for working with material containing asbestos. Nova Scotia’s occupational safety and health legislation and regulations are reviewed on a periodic basis by the Occupational Health and Safety Advisory Council which is made up of both employer and worker representatives and is mandated to advise the Minister. Similarly, Manitoba’s legislation requires a review of legislation every five years by a Tripartite Advisory Council. Under Saskatchewan’s legislation, the Occupational Health and Safety Council reviews the act and regulations at least once every five years, including Part XXIII of the regulations which establish the requirements for the use, inspection, handling, disposal and training of employees in the handling of asbestos.

With specific reference to the application of Article 10(b) of the Convention, the Government states that the use of manufactured products containing asbestos in construction is very limited and is regulated by the Hazardous Products Act; that Schedule I of this Act and the Asbestos Products Regulations generally prohibit asbestos products that are destined for application by spraying, and prohibits the use of products containing crocidolite fibres and that similar provisions are also included in provincial and territorial legislation, as for example in section 37 of Manitoba’s Workplace Safety and Health Regulation. The Government also indicates that Ontario encourages the substitution of hazardous substances with less hazardous ones where possible; that the Nova Scotia Building Code bans the use of any form of asbestos that could enter ventilation systems; and that section 41 of the Occupational Safety and Health Regulations in Quebec prohibits the use of crocidolite, amosite and any product containing either one of these substances unless their replacement is not reasonably and practically feasible.

The Committee notes that the CLC and the CSN consider that the state of current scientific and technical information point to a need for a total ban of asbestos and that the Government has not taken due account of this information. According to the CSN, the fact that the Convention does not provide for an outright ban on the use of asbestos is merely a reflection of the fact that it relies on scientific knowledge at the time and that this knowledge was not as developed in 1986 as it is now. In support for their positions regarding current scientific and technical information, the CLC and the CSN both refer to the conclusions of the Conference Committee and the cited authorities. The CSN also refers to research and studies carried out by the National Public Health Institute of Quebec (INSPQ) and that INSPQ considers that, based on current knowledge, there is no threshold level where workers exposed to asbestos can be protected from cancer. The CSN further indicates that based on two studies covering exposure to asbestos in the periods 1982–96 and 1988–2003, the INSPQ concluded in 2005 that chrysotile asbestos must be considered to be a carcinogen and that the safe use of asbestos is difficult, if not impossible, in sectors such as construction, renovation and transformation of asbestos. The CSN also refers to a statement published in 2009 by medical doctors, toxicologists, industrial hygienists and epidemiologists that the scientific evidence that chrysotile asbestos causes asbestosis and cancer deaths is now irrefutable and that this conclusion is supported by the International Agency for Research on Cancer (IARC). The CSN further cites a study by the Workplace Safety and Health Committee in Quebec of occupational diseases of workers above 45 years of age for the period 1999–2008 which concluded that the fatality rate had increased and the fatalities recorded were mostly related to exposure to asbestos as seven out of ten fatalities were attributable to asbestos. In support of the position that the Government has not taken due account of the ILO and the WHO positions, the CLC refers to a statement by the Government in the House of Commons in Canada that chrysotile can be used safely in a controlled environment. The CSN further affirms that a total of 11 research reports published by the INSPQ since 2003 contradict this official Canadian policy that asbestos can be used safely.

In response to these arguments, the Government refers to the extensive information it has provided in the current and previous reports demonstrating that all provincial governments have adopted and enforced laws and regulations that prescribe measures to be taken for the prevention and control of and the protection of workers against health hazards due to occupational exposure to asbestos. In response to the CSN comments regarding the situation in the Province of Quebec, the Government states that the most recent data provided by the Canadian Society of Safety Engineering indicates 90 fatalities caused by exposure to asbestos (mesotheliomas asbestosis and cancers) were recorded in 2010 and that in 94 per cent of these cases, exposure had been initiated prior to 1980. Among the 20 workers who had died from cancer, 14 had a cumulative exposure time of 20 years and 18 of them had been exposed before 1980, whereas the exposure in the remaining two cases were initiated in 1982 and 1983 respectively. The Government emphasizes that all these cases predate the awareness of the dangers related to exposure to asbestos which subsequently led to the development of national programmes for the control and monitoring of exposure to asbestos, including in Quebec, as well as, at the international level, the development and adoption of this Convention in 1986. The Government also maintains that relevant laws and regulations in Quebec including section 3.23.3 of the Act on Security in Construction (c. S-2.1, r.6) and section 41 of Occupational Safety and Health Regulations are in full conformity with the provisions of the Convention as they provide that the use of crocidolite, amosite or any products containing either one of these substances is prohibited unless their replacement is not reasonable and practicable. The Government also underscores that, according to section 12 of the Occupational Safety and Health Regulations, the employer has an obligation to ensure that a reduced minimum level of exposure to asbestos for workers applies even when the prescribed threshold limit values are applied.

In their submissions, the CSN and CLC both express their view that Canada should follow up on the recommendation by the Conference Committee to engage in consultations with representative organizations of employers and workers on a review of national legislation regarding exposure to asbestos and that, in this context, account should be taken of the evolution of scientific studies, knowledge and technology since the adoption of the Convention. They also maintain that, in this context, account should be taken of the findings of the WHO, the IARC and the International Programme on Chemical Safety, the ILO and the United Nations Development Programme which should lead to a ban on the use of asbestos and to the implementation of a transitional programme including retraining for workers in this industry. The CLC adds that such consultations should be included in the periodical review of laws and regulations which is called for in Article 3(2) of the Convention.

As regards the tripartite consultations held in application of Article 4 of the Convention, the Government affirms its strong commitment to tripartite consultation and involvement of the social partners in all aspects of occupational safety and health. The Government underscores that Article 4 requires that “the competent authority” shall consult the most representative organizations of employers and workers concerned on the measures to be taken to give effect to the provisions of this Convention and that, accordingly, in all jurisdictions in Canada, reviews of occupational safety and health laws are undertaken with representatives of workers and employers. The Government also indicates that, in the province of Quebec, the Government has recently benefited from an exchange of views with the relevant stakeholders including the local authorities in the context of the reopening of the Jeffery Mine, in Asbestos, and that most trade unions, the largest of which in Quebec is affiliated with the CLC, supported the reopening of the mine, while reiterating their commitment to the safe use of chrysotile asbestos.

In light of the comments of the CLC and of the CSN, and the Government’s response, taking into account that Canada is one of the main producers of asbestos and that Canada is required to adopt the strictest standards limits for the protection of workers’ health regarding exposure to asbestos, the Committee requests the Government to continue to provide further information on consultations held with the most representative organizations of employers and workers pursuant to Article 4 of the Convention on measures taken to give effect to the Convention, in particular regarding the provisions in Articles 3(2) and 10, taking into account the evolution of scientific studies, knowledge and technology since the adoption of the Convention, as well as the findings of the WHO, the ILO and other recognized organizations concerning the dangers of exposure to asbestos.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2012.]