(dissenting) — In 2003 Washington voters enacted Initiative 841 (1-841), repealing the “expensive, unproven” state ergonomics regulations promulgated by the Department of Labor and Industries (L&I) three years prior. Laws of 2004, ch. 1, § 1 (effective Dec. 4, 2003). The majority undermines 1-841 by permitting L&I to enforce the rejected ergonomics standards through the Washington Industrial Safety and Health Act of 1973’s (WISHA) general duty clause, which mandates employers maintain workplaces free of “recognized hazards that are causing or likely to cause serious injury or death.” RCW 49.17.060(1). Because L&I lacks the authority to implement as “recognized” ergonomics standards voters deemed “unproven,” I would uphold the trial court’s order. Accordingly, I dissent.
¶27 The ergonomics regulations promulgated by L&I in 2000 focused on reducing “work-related musculoskeletal disorders.”10 The regulations covered all employers with “caution zone jobs,”11 or jobs including specific physical risk factors defined in the rules, requiring such employers to identify and reduce any potential ergonomics hazards and to provide ergonomics awareness education for their employees.12 To “aid in creating jobs and employing the people of Washington,” 1-841 repealed this “expensive, unproven rule.” Laws of 2004, ch. 1, § 1. 1-841 also removed L&I’s authority “to adopt any . . . rules dealing with musculoskeletal disorders, or that deal with the same or similar activities as these rules being repealed, until and to the extent required by congress or the federal occupational safety and health administration.” Id. § 2. The initiative’s provisions “are to be liberally construed to effectuate [its] intent, policies, and purposes.” Id. § 3.
¶28 “In approving initiative measures, the people exercise the same power of sovereignty as the Legislature when *437it enacts a statute.” Wash. Fed’n of State Employees v. State, 127 Wn.2d 544, 556, 901 P.2d 1028 (1995). When analyzing a statute enacted through an initiative, our purpose “is to ascertain the collective intent of the voters.” Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762, 27 P.3d 608 (2001). We determine voter intent from the language of the initiative “as the average informed voter voting on the initiative would read it.” Id. “Where the language of an initiative enactment is ‘plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the enactment is not subject to judicial interpretation.’ ” Id. (quoting State v. Thorne, 129 Wn.2d 736, 762-63, 921 P2d 514 (1996)). Questions of law are reviewed de novo. Berrocal v. Fernandez, 155 Wn.2d 585, 590, 121 P.3d 82 (2005).
¶29 L&I argues 1-841 did not eliminate its power to investigate and enforce “recognized” ergonomics hazards “causing or likely to cause serious injury or death” under the general duty clause of RCW 49.17.060(1). SuperValu contends the trial court correctly concluded 1-841 removed L&I’s authority to regulate ergonomics hazards.
¶30 The general duty clause requires employers to furnish workplaces free from “recognized hazards that are causing or likely to cause serious injury or death.” RCW 49.17.060(1). Underlying L&I’s general duty clause argument is the assumption ergonomics hazards can be considered “recognized” and “causing or likely to cause serious injury or death.” Id. L&I’s own repealed rules failed to identify any ergonomics hazards, instead requiring employers to analyze several risk factors to determine whether their intensity, frequency, or duration constituted a hazard.13 In fact, the very definition of ergonomics appears to be an open question. While the repealed rules defined ergonomics as “[t]he science and practice of designing jobs or workplaces to match the capabilities and limitations of *438the human body,”14 L&I now asserts ergonomics includes psychological “hazards” as well, defining it as “the study of the design of requirements of work in relation to the physical and psychological capabilities and limitations of people.”15 Most importantly, however, the assumption ergonomics hazards can properly be considered as “recognized” is inconsistent with the plain and unambiguous language of 1-841, which repudiated the ergonomics regulations as “unproven.”
¶31 In an attempt to sidestep this determination, the majority asserts it cannot “be argued that anything about the general duty clause is new or unproven.” Majority at 432. This statement is both true and beside the point. The voters determined it was ergonomics, and not the general duty clause, that was “unproven.” The voters’ judgment is not nullified merely because L&I must meet a higher burden of proof in establishing a violation under RCW 49.17.060(1). While 1-841 does not specifically mention the general duty clause, the fact it deemed ergonomics “unproven” removes L&I’s authority to investigate and enforce it as a “recognized” hazard.
¶32 Initiatives are to be construed liberally “and a hypertechnical construction which deprives them of effect is to be avoided.” Maleng v. King County Corr. Guild, 150 Wn.2d 325, 334, 76 P.3d 727 (2003). In order to improve the business climate and create jobs in Washington, 1-841 repealed the “expensive, unproven” state ergonomics regulations and removed L&I’s authority to “adopt any . . . rules dealing with musculoskeletal disorders, or that deal with the same or similar activities as [the repealed rules] ,”16 Yet according to the majority, “the average informed voter voting on the initiative,” Amalgamated, 142 Wn.2d at 205, intended nothing more than to place a higher evidentiary burden on L&I in enforcing these rules. See majority at *439432-35. This interpretation renders 1-841 effectively useless. L&I has already directed its staff to use “ [t]he repealed rule and its components ... as a guide to identifying potential hazards and areas of concern” in consultations with employers.17 And in this case, without alleging the existence of any ergonomics hazards, L&I has subpoenaed all materials related to SuperValu’s “program for the reduction and prevention of musculoskeletal disorders, injuries, and illnesses, and all written materials related in any way to [its] administration.”18 This subpoena constitutes an attempt at enforcing the repealed rules, and it was properly quashed by the trial court.
¶33 The Occupational Safety and Health Act (OSHA) does not compel a different result. It requires any state occupational safety plan, such as WISHA, to provide for the enforcement of standards “at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under [OSHA] which relate to the same issues.” 29 U.S.C. § 667(c)(2) (emphasis added). Although the Occupational Safety and Health Administration issued industry-specific ergonomics guidelines after Congress rescinded the federal ergonomics rules, these are voluntary and failure to implement them “is not itself a violation of the General Duty Clause of the OSH Act.”19 Neither L&I nor the majority cites any ergonomics standards promulgated under OSHA which would require WISHA to authorize L&I enforcement of alleged ergonomics hazards under its general duty clause. The trial court’s interpretation of 1-841 is not preempted by federal law.
¶34 Washington voters repealed state ergonomics regulations and removed L&I’s authority to adopt any rules relating to musculoskeletal injuries in the future, conclud*440ing such rules were “unproven.” L&I’s assertion of authority to regulate ergonomics hazards under the general duty clause must fail because no hazard can be both “recognized” and “unproven” at the same time. By sanctioning the indirect enforcement of the repealed rules under a different, albeit more stringent, evidentiary standard, the majority undermines the “collective intent of the voters.” Amalgamated, 142 Wn.2d at 205. The trial court correctly concluded 1-841 removed L&I’s authority to enforce alleged ergonomics hazards, and I would uphold its order quashing L&I’s subpoena.
¶35 I dissent.
Former WAC 296-62-05103 (2000), repealed by I-841, Laws of 2004, ch. 1, § 1 (effective Dec. 4, 2003) (repealed by 1-841); RCW 49.17.360-.370.
Former WAC 296-62-05103 (2000), repealed by 1-841; RCW 49.17.360-.370.
Former WAC 296-62-05120, -05130 (2000), repealed by 1-841; RCW 49.17-.360-370.
Former WAC 296-62-05130, repealed by 1-841; RCW 49.17.360-.370.
Former WAC 296-62-05150, repealed by 1-841; RCW 49.17.360-.370.
L&I Mot. for Discretionary Review at 2 n.l (citations omitted).
Laws of 2004, ch. 1, § 2.
WISHA Reg’l Directive 10.05, at 2 (Dec. 4, 2003) (on file with L&I Div. of Occupational Safety & Health); Clerk’s Papers (CP) at 52.
CP at 40.
U.S. Dep’t of Labor, Occupational Safety and Health Administration, Ergonomics: FAQs, http://www.osha.gov/SLTC/ergonomics/faqs.html (last visited Oct. 17, 2006).