Written by Simon Foxcroft, Mathieu LaFleche, Tayler Meagher, and Jennifer Miller
Bill 47: Ensuring Safety and Cutting Red Tape Act, 2020, was introduced in the Alberta Legislature on November 5, 2020, and, if passed, will come into force on September 1, 2021. Among other things, Bill 47 comprehensively overhauls occupational health and safety legislation by replacing the current Occupational Health and Safety Act (the "Current Act") with a new act (the "New Act"). The New Act reverses a number changes made when the Current Act came into force in 2018, and it reduces, or eliminates, a number of prescriptive and often poorly-defined statutory requirements, such as those relating to joint work site health and safety committees (now called "joint health and safety committees").
The magnitude of change that the New Act represents is equal or greater than that imposed by the Current Act when it was enacted in 2018. This article focuses on three broad areas of proposed change under the New Act:
- The revised scope of duties placed on different work site parties;
- Revisions to the operation of joint health and safety committees ("JHSC") and other changes to an employer's daily operations to address health and safety at work sites; and
- Significant changes to how, and when, incident reporting and investigation is to take place.
Obligations of Worksite Parties
In the Current Act, a self-employed person is deemed to be a worker. Under the New Act, self-employed persons will be deemed to be an employer. This was the case prior to the implementation of the Current Act. Individuals working as independent contractors will therefore likely be subject under the New Act to employer-specific obligations rather than worker-specific obligations.
The New Act alters or eliminates several obligations placed on employers under the Current Act, including:
- Under the Current Act, part of an employer's duty is to ensure the "health and safety and welfare" of anyone who is in the "vicinity of the work site who may be affected by hazards originating from the work site". The New Act impacts here are twofold. First, while the purpose of the Current Act has not changed, the definition of health and safety as including "physical, psychological and social well-being" has been removed. Further, the New Act clarifies that this obligation applies only to hazards originating from the work site that are identifiable and controllable and may materially affect people in the vicinity of the work site.
- Employers will no longer be required to advise prime contractors of the name of all the supervisors of workers if they are working on a work site where a prime contractor is required.
- The New Act eliminates the explicit legislative requirement that employers ensure workers are adequately trained to protect their health and safety before the worker begins performing a new work activity, uses new equipment, performs a new process, or is moved to a different work site. The New Act instead imposes only the more general requirement that employers must ensure workers are adequately trained in all matters necessary to perform their work in a healthy and safe manner.
- The New Act eliminates the provisions under the Current Act that require employers to continue paying worker wages while under a stop work or stop use order.
- The Current Act imposes an obligation on employers to keep all "health and safety information" readily available and provide it to a JWHSC (or workers, if there is no JWHSC) as well as to the prime contractor, if applicable. Health and safety information is broadly defined to include information that "may affect the health and safety of a person at a work site". Under the New Act, the information that is subject to this requirement is limited to information that is "related to work site hazards, controls, work practices and procedures". Under the New Act, this information is to be provided to workers in all cases, whether or not a JHSC exists.
The New Act eliminates the obligation currently imposed on supervisors to ensure their own competency to supervise workers under their supervision. The New Act also eliminates the express legislative requirement under the Current Act requiring supervisors ensure that workers under their supervision are properly using or wearing PPE.
In addition to the continuing obligations imposed on workers to take reasonable care to protect the health and safety of workers, the New Act imposes a positive obligation on workers to participate in any training provided by employers. The New Act also imposes a positive obligation on a worker prohibiting the worker from performing work they are not competent to perform that may endanger the worker or others unless they are under the direct supervision of a worker who is competent to perform the work.
The New Act also changes the types of situations where a worker has the right to refuse work. Specifically, under the New Act, the right to refuse applies only to "undue hazards", as opposed to "dangerous conditions" as contemplated by the Current Act. Undue hazards under the New Act are defined to include hazards that pose a serious and immediate threat to the health and safety of a person. While the New Act does not go so far as to return Alberta to its pre-June 2018 legislation where workers had a positive duty to refuse work on certain safety related thresholds, this clarification is a welcome change as the Current Act lacks vital definition. We query if further improvement is possible.
The New Act also significantly amends those prohibitions under the Current Act restricting when certain action can be taken against workers. Under the Current Act, workers cannot be subject to 'discriminatory action' by reason of a wide array of circumstances, including refusing to perform dangerous work, seeking to establish a JWHSC, or giving information about work site conditions to an employer. Under the New Act the only restriction is that workers cannot be subject to 'disciplinary action' by reason of having acted in compliance with the Current Act (or its regulations, code or applicable order).
The New Act replaces the former role of a "contractor" with the role of a "contracting employer". A contracting employer is defined to mean a person, partnership or group of persons who, through a contract, an agreement or ownership, directs the activities of one or more employers involved in work at a work site. Under the New Act, a contracting employer must ensure that any employers it directs comply with the OHS Act, Regulations and Code.
The New Act requires any contracting employer to ensure that the owner, and any employer, prime contractor, supplier or service provider is informed of any existing or potential work site hazards that may affect workers or other persons at the work site.
Under the Current Act, prime contractors are generally required on multi-employer work sites if the work site is a "construction work site" or an "oil and gas work site". The New Act now provides the following definitions for these terms, which were previously undefined and required clarification by various bulletins issued between 2018 and 2020:
- "construction work site" means a work site where any of the following activities are conducted:
- the building, demolition, repair, alteration, extension or renovation of a structure;
- site development or building and repair of roads, highways, pipelines, sewage systems, drainage systems, electrical transmission lines or systems or telecommunication transmission lines or systems;
- digging, working in or filling a trench or excavation; or
- land clearing, earth moving, grading, boring, drilling, abrasive blasting or concreting.
- "oil and gas work site" means a work site where any of the following activities are conducted:
- oil and gas development, production, refining and processing;
- the drilling and mining of, completion, recompletion or remedial treatment of an oil or gas well;
- the supplementary operation performed or service provided that is necessary to the drilling of an oil or gas well;
- work performed with a mobile workover or completion service rig;
- geophysical operations in relation to oil and gas;
- construction and upgrading of oil and gas infrastructure;
- oil and gas pipeline construction and operation;
- oil and gas site abandonment, remediation and reclamation; or
- bitumen and in situ heavy oil recovery;
We note the construction work site definition departs from that contained in the Alberta Labour bulletin LI064 Construction work sites defined issued in July 2020 in certain ways and particularly with the concept of a major renovation to a structure now being a "renovation of a structure". Without further definition, we query if this concept will lead to further lack of clarity.
Additionally, under the New Act, the person in control of any work site outside a construction or oil and gas work site may enter into a written agreement to designate a prime contractor of the work site. This will be of importance on large projects where the allocation of risk and responsibility is often heavily negotiated. This new provision does not replace or preclude the ongoing ability of a person in control of an oil and gas work site or a construction work site from entering into a similar delegation of responsibility.
Health and Safety Committees
Employers will need to review the New Act requirements for Health and Safety Committees as they have been rewritten considerably. The following is a partial summary.
Under the New Act a JHSC is now required if the employer regularly employs 20 or more workers. The New Act removes a number of prescriptive statutory requirements contained in the Current Act, including:
- 90-day time limit threshold before JHSC requirement. However, employers must consult with any union before establishing a JHSC.
- Virtually all statutory requirements relating to the size, composition and training requirements for the JHSC have been eliminated. The New Act continues to impose a requirement that employer representation on the JHSC does not exceed worker representation.
- Work site inspection duties: Currently, the JWHSC's duties include the regular inspection of the work site. Under the New Act, the JHSC's inspection duty has been amended to instead focus on the review of the employer's documentation relating to inspections.
- Participation in incident investigation: Under the New Act, mandatory participation by the JHSC in incident investigations is no longer required.
- Promotion of Safety Measures: Currently, the JWHSC is responsible for developing and promoting measures to protect the work site and checking the effectiveness of those measures. The New Act no longer explicitly incorporates this duty.
- Paid Training and Paid Time Off: The New Act no longer includes a mandatory requirement that JHSC be compensated for training or be given time off. Any JHSC meeting must be held during normal working hours.
- Requirements for Meetings: The Current Act requires the JWHSC to meet quarterly with several restrictions on who can call a meeting and the quorum of meetings. The New Act removes these requirements.
Regrettably, there is still potential for interpretation for some multi-employer work sites where a duty exists to "coordinate" a JHSC for the work site. As this issue has been a considerable source of debate with the Current Act, we hope this particular point can receive further attention.
Health and Safety Program
The New Act removes all prescriptive requirements relating to Health and Safety Programs and now simply provides that employers with more than 20 regularly-employed workers must establish a health and safety program.
Reviews and Appeals Process
The New Act removes the appeal process of stop work and stop use orders to the Director of Inspection. These appeals will now go directly to the Labour Relations Board. The New Act also abolishes the Occupational Health and Safety Advisory Council, which is currently responsible for making health and safety recommendations to the Minister.
Incident and Investigation
The New Act significantly changes how employers or prime contractors must report certain events by amending or removing several current requirements.
- Reporting considers injuries, illnesses, worker exposures to radiation and incidents: The New Act now incorporates previously separate radiation laws, so that change was predictable. As Section 40 of the Current Act only refers to the undefined terms of "injury or incident" or "serious injury", the additional reference to "illness" throughout the reporting section is a considerable change. We query if our current pandemic is the cause for this change, but note that the ongoing lack of definition for the words "injury" and "illness" will continue to create interpretation issues.
- Reporting incidents that result in hospital admission: The New Act continues to require reporting of serious incidents similar to the Current Act. However, the New Act changes the definition of what constitutes a hospital admission. Under the New Act, reporting will be required where there "is reason to believe the worker has been or will be admitted" rather than at the time a physician writes admitting orders.
- Reporting and investigating other injury or potentially serious incidents: The Current Act requires reporting of any "other injury or any other incident that has the potential of causing serious injury to a person". We are pleased to report that this wildly confusing drafting that lacked vital definition has been improved upon. Under the New Act, there is a requirement to investigate (but not report) if the incident "had a likelihood of causing serious injury or illness" and there is "reasonable cause to believe that corrective action may need to be taken to prevent recurrence".
The proposed revisions to the Current Act are significant and if the New Act is enacted, it will have a considerable impact on the workplace health and safety regime in Alberta. A great number of the changes under the New Act are directed towards streamlining health and safety processes in the work place, and paring back some of the administrative burden and confusion introduced by the Current Act.
While some of the interpretation issues plaguing effective implementation of the Current Act have been addressed, as always there is room for improvement. We are hopeful that future readings of this Bill might continue to finesse this legislation such that Alberta businesses and workers have the clarity they require to understand and follow critical health and safety laws.
Bennett Jones is at the forefront of occupational health and safety law in Western Canada and we are readily available to assist with all aspects of the impact of the New Act on your business and workplace.