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HMIRC: A New Organization

The Hazardous Materials Information Review Commission will be a model public service organization in the next millennium. We are not changing the fundamentals of what we do: enabling industry to protect trade secrets, and enhancing worker safety by reviewing the safety information chemical suppliers and employers provide on products used in the workplace. Instead, we are changing the way we accomplish these things. HMIRC will be a renewed, revitalized and progressive organization for the years to come.

Over the last year, we have been searching for ways to change in order to best fulfill HMIRC’s mandate, serve our clients and participate in partnerships with governments, industry and labour. As a result, we have found creative and innovative ways to serve the Canadian worker, the chemical industry, and federal, provincial and territorial occupational health and safety programs.

Protecting Trade Secrets and Enhancing Workplace Safety

The Hazardous Materials Information Review Commission was created on October 1, 1987 and it is accountable to the Parliament of Canada through the Minister of Health. HMIRC is a model of industry, labour and government consultation, consensus, and cooperation. Our uniqueness is exemplified by the fact that we derive our mandate and program accountability from federal, provincial, and territorial legislation.

The Commission enables chemical companies to protect their trade secrets, and while doing so ensures that accurate health and safety information about hazardous chemicals is available to workers in order to reduce workplace-related illness and injury. The Commission’s activities are key components of the Workplace Hazardous Materials Information System, which was created in the late 1980s through a consensus of labour, industry and government. The success of WHMIS depends on cooperation among all these partners. All three groups today play a part in ensuring that the information workers need to know about hazardous chemical products is available.

WHMIS requires that manufacturers and suppliers provide employers with information on the hazards of materials produced, sold, or used in Canadian workplaces. The employers, in turn, provide that information to employees through product labels, worker education programs, and Material Safety Data Sheets (MSDSs). A product’s MSDS must fully disclose all hazardous ingredients in the product, its toxicological properties, any safety precautions workers need to take when using the product, and treatment required in the case of exposure.

When a supplier creates a new or improved product and wants to protect, for example, the identity of one or more of the ingredients or the concentration, the company applies to HMIRC for an exemption from the requirement to list all hazardous ingredients on the product’s MSDS. Once the application is complete, HMIRC registers the claim and the product can be made available in the marketplace. The Commission then issues a decision on the validity of the claim and, to protect worker safety, verifies the compliance of the MSDS and label with the Hazardous Products Act and Controlled Products Regulations, and with provincial and territorial occupational health and safety acts. The Commission issues orders for any changes that are necessary to the MSDS or product labels.

If the Commission finds that the information can be considered a trade secret, the company’s exemption claim remains in effect for three years. At the end of that period the company can refile a claim for exemption.

All the decisions and orders of the Commission can be appealed before an appeal board. Each appeal board has three members—a chairperson, a representative of suppliers or employers, and a representative of workers.

The Traditional Approach

Our dual role—of protecting worker safety and trade secrets—means that the Commission has a unique relationship with labour and industry. Both parties have an interest in what we do and how we do it. To that end, the Commission has an interest in developing positive working relationships with industry and labour, all with the goal of enhancing safety for workers.

The Commission’s traditional approach to its mandate was perceived as rigid and made it difficult for a truly effective working relationship to be created with industry. It did not allow for as much interaction as is now envisaged—communication and sharing of information that will lead to a compliant MSDS.

Over the past decade, the role of government and the interaction between government, industry and labour changed across society. Methods that had once been accepted came to be seen as overly bureaucratic. In addition, the last decade has witnessed the evolution of technology to the point where people now expect to have information easily available at the start of a process, so they can avoid problems in their dealings with government agencies.

Calls for Changes

As times changed, industry called for changes from the Commission. These feelings of dissatisfaction, which the Commission had heard as murmurs for some years, became a low roar in mid-1997. At that time, the Commission’s Council of Governors, which oversees its work, authorized a consultant to review industry concerns about HMIRC. Industry representatives expressed discontent with the broad scope of the Commission’s mandate and the bureaucratic nature of the review process. They also complained about what they perceived as high fees for filing trade secret claims and said that they found the appeal hearings took too long and were too costly.

The consultant expressed the conclusions of his review in a report to HMIRC’s Council of Governors. The Council of Governors endorsed eleven of the report’s recommendations unanimously but did not reach consensus on two others. The Council reported this to the Minister of Health in May 1998. Later that same month, Mr. Weldon Newton was appointed President and Chief Executive Officer of the Commission.

Ideas for Renewal – Building on our Experience

In October, the Minister requested that Mr. Newton conduct a more widespread renewal consultation with all interested parties. The Minister also requested that the Commission undertake an assessment of the potential impact of the implementation of the Council’s Report recommendations on the operations of the Commission.

The President and staff were eager to examine HMIRC’s operating procedures and working relationships. In a few intense months during the fall of 1998, Commission staff took stock of their experience in handling more than 3,000 claims over eleven years, and developed ideas for renewal that more specifically addressed the issues raised by claimants. This effort included a survey of staff which determined that they were ready to support change. The survey was followed by a first-ever staff retreat where they gained a better appreciation of the program problem areas and undertook an analysis of solutions. This was an extraordinary year for staff, who were double-tasked to carry on with day-to-day operations while creating and developing the ideas and concepts—such as our three business lines—that will provide the basis for the Commission’s future.

Throughout this period of analysis and development there was extensive collaboration between Commission staff and the Council of Governors. Monthly meetings began in November during which Council provided valuable guidance and helped shape the vision. This critical contribution developed the consultation process and the conceptual framework that led to the Commission’s first strategic plan.

In January 1999, the Commission presented a consultation draft of the strategic plan to the Council of Governors. With Council’s endorsement to proceed, the President and senior management set out to organize the first-ever consultation meetings with the Commission’s stakeholder groups.

A presentation was made at the Canadian Labour Congress annual Health and Safety Workshop in February. In their input, labour made clear its expectation that the Commission remain a strong protector of their right to workplace health and safety information, as provided for in the WHMIS legislative scheme.

Next, the Intergovernmental WHMIS Coordinating Committee (IWCC) was consulted. This meeting was an opportunity for the Commission to strengthen the partnership with federal, provincial and territorial WHMIS colleagues. The IWCC indicated support for the continuation of HMIRC’s mandate and the key elements of the strategic plan.

On March 30th, in Toronto, the Commission’s senior staff met with representatives from 21 companies, several from outside the country, who are responsible for the majority of claims filed with the Commission. The claimants were encouraged by the vision of HMIRC in the strategic plan. While this was the first such meeting in the Commission’s history, it will not be the last. The Commission is committed to open dialogue and face-to-face discussions with all stakeholders on a regular basis in the future.

Our strategic plan is truly a blueprint for self-directed change. It has enabled the Commission to develop a dialogue with industry and labour on how we accomplish our goals using improved procedures and approaches. It is not a series of high-sounding ideals without practical foundation. It is not a mere tinkering at the edges of what we do. Informed by the wealth of nearly 12 years of experience, it is a detailed description of workable ideas that herald a new era for the Commission.

The New Approach — Faster, Simpler, More Responsive

We are changing the way we relate to industry. The Commission will provide more assistance to industry at the beginning of the application process. The flow of information about WHMIS policy and interpretation will be improved. We have plans to develop a Web site where we can share information with industry and labour, and work to standardize information in a number of areas.

Where possible, we will attempt to achieve voluntary changes to MSDSs. We are exploring options for a simplified appeals process.

Our fee structure will be examined with Treasury Board Secretariat. This will ensure that cost-recovery is supportable by government policy and that clients are being fairly charged for the work performed.

We are also improving and expanding partnerships with our WHMIS colleagues in the federal government, the provinces and territories. The Commission administers provincial and territorial legislation that applies to employers and workers. Suppliers come under federal jurisdiction and enforcement is delegated by the federal government to the provincial and territorial health and safety inspectors. These inspectors can identify products that contain trade secret formulations that may not have been submitted to the Commission. As part of the WHMIS collaboration, we are exploring how we can make the expertise of our toxicologists available to provincial and territorial organizations. One example of this initiative is the distribution of Toxicity Profile Summaries (which have been prepared for certain chemical substances) to fellow members of the IWCC.

The goal of all of these changes is to encourage and assist industry to achieve early compliance with WHMIS requirements. It follows that early compliance means that workers have accurate health and safety information in a timely fashion. We are committed to providing service that is better and faster and to doing our job at a fair and reasonable cost. We are changing the way we work. What will not change is the dual role of the Commission in protecting trade secrets while ensuring that health and safety information in the workplace is accurate.

We Work with Many Others Concerned with Worker Safety

We recognize that we do not work alone. The WHMIS program is an integrated activity with many partners. The Commission will continue to work closely with the agencies responsible for enforcing WHMIS requirements—Health Canada, Human Resources Development Canada, and the various provincial and territorial occupational health and safety agencies—and with our labour and industry stakeholders, to secure worker safety while supporting industrial innovation by protecting their commercial trade secrets.