Written by Simon Foxcroft, Mathieu LaFleche, Jennifer Miller and Jenna Vivian
Bill 30: An Act to Protect the Health and Well-being of Working Albertans (the New Act), received its first reading in the Legislative Assembly of Alberta on November 27, 2017. If enacted in its current form, the New Act will materially alter Alberta's Occupational Health and Safety Act (the Current Act) and expand the nature of the health and safety obligations owed by employers and businesses in Alberta. The New Act states that, subject to certain exempted provisions, it will come into force on June 1, 2018. The full version of the New Act is located online.
This article focuses on three broad areas in which changes have been made:
- The expansion of both the types of entities that will have duties under the New Act and the scope of those duties;
- The changes to day-to-day operations of an employer to address safety at a work site; and
- The expansion of obligations to report incidents and of the government's authority in response.
Obligations of Work Site Parties
The New Act now contains an expansive definition of "health and safety" which is defined to include not only the physical well-being of workers, but also their "psychological" and "social" well-being. These new distinct elements of "psychological" and "social" well-being are not otherwise defined in the New Act. As the phrase "health and safety" permeates the entire New Act, this expansion could have significant ramifications.
The following sections analyze changes relating to certain work site parties singled out in the New Act. It should be noted that the New Act also identifies and defines a number of other discrete work site parties such as "service provider", "temporary staffing agency" and "self-employed person" that we have not specifically addressed in our analysis.
Under the Current Act, every employer is, among other things, obligated to ensure the health and safety of workers engaged in their work and of workers present at the work site. The New Act would expand these obligations in various ways. The employer will also be obligated to ensure the "welfare" of workers, which is defined in the New Act as "the conditions or facilities, in or near a work site, provided for the feeding, rest, hygiene or sanitary requirements of a worker". The employer's obligations are also extended to other persons at or in the vicinity of the work site. This expansion is significant in that employers are now responsible for the safety of individuals who are not workers and are also responsible for the safety of individuals who may not even be physically present on the work site. This will likely pose challenges as employers have very limited, if any, control over these individuals. The New Act also imposes other specific employer obligations including the following: ensuring workers are not subjected to or participate in harassment or violence at the work site; ensuring workers are supervised by a competent person who is familiar with the New Act, regulations and code; consulting and cooperating with the joint work site health and safety committee or the health and safety representative; advising the prime contractor of the names of all of the supervisors; and ensuring workers are adequately trained in all matters necessary to protect their health and safety.
The Current Act does not specifically define the term "supervisor" nor does it prescribe specific obligations for supervisors. The New Act broadly defines a "supervisor" to be a person who has charge of a work site or authority over a worker. This definition gives rise to the potential that there may be multiple individuals who are supervisors at a single work site and following the lead of other jurisdictions, presumably an objective test will be applied to determine whether someone is undertaking a supervisory role, regardless of their title. The New Act lists specific personal obligations of a supervisor with respect to the workers under their supervision, which include but are not limited to: ensuring the supervisor is competent; taking all precautions necessary to protect the health and safety of workers; ensuring the workers comply with the Act, regulations and code; ensuring every worker uses or wears necessary personal protective equipment; ensuring workers are not subjected to or participate in harassment or violence at the work site; advising every worker of all known or reasonably foreseeable hazards; and reporting unsafe or harmful work site acts or conditions to the employer.
This is a very significant change and its impact cannot be underestimated. Employers will need to identify all personnel who are supervisors (which may be difficult given the definition provided) and ensure they are both competent to fulfill the role and equipped to meet this considerable legal obligation. Employers should also anticipate that some of those personnel will no longer be willing to assume such a role, given the new obligations and the attendant liability.
The Current Act requires workers to take reasonable care to protect the health and safety of themselves and the other workers present. As with the employer obligations, the New Act proposes to expand this obligation to other persons at or in the vicinity of the work site. The New Act also proposes to introduce the following new worker obligations: where required, use all devices and wear all personal protective equipment; and refrain from causing or participating in harassment or violence.
Under the Current Act, workers have a positive obligation to refuse work that poses an imminent danger to their health and safety, or that of others. The New Act dilutes this duty, turning it into a discretionary right to refuse work that a worker reasonably believes constitutes a danger to a worker’s health and safety, or to that of others. In our view, this is a tremendous step backwards in work site safety and it creates an inherent conflict with the obligation of a worker under the New Act to take reasonable care to protect their own health and safety, and that of others at or in the vicinity of the work site.
The Current Act requires suppliers to ensure that any tool, appliance or equipment that is supplied is in a safe operating condition and is in compliance with the Act, regulations and code. The New Act expands these obligations considerably and imposes, among other things, the following obligations: if the supplier has responsibility under an agreement to maintain equipment supplied, to maintain the equipment in a safe condition, in accordance with the manufacturer's specifications, and in compliance with the Act, regulations and code; and to provide notice if the equipment or harmful substance does not comply with a standard prescribed under the regulations or code. We recommend that suppliers pay particular attention to the details associated with this latter obligation, in particular, as it appears to impose a continuing duty to notify all past and future customers of any non-compliance that the supplier is aware of, or reasonably ought to be aware of.
Other than several narrow provisions in the code, the Current Act does not place any specific obligations on owners of a work site except in the limited case where a prime contractor is required for a work site, but not identified, in which case the prime contractor obligations default to the owner. The New Act imposes a number of specific obligations that will apply to owners at every work site. The obligations include a requirement that every owner ensure that the land, infrastructure and any building or premises on the land that is under the owner's control is provided and maintained in a manner that does not endanger the health and safety of workers or any other person. The owner will also be obligated to ensure that any hazard identified by the owner is communicated to all other work site parties.
The New Act also contains a revised definition of "owner" with the "owner" being defined as the person who is registered under the Land Titles Act as the owner of the land on which work is being carried out or may be carried out, or the person who enters into an agreement with the owner to be responsible for meeting the owner's obligations under the Act, the regulations or the code, but does not include a person who occupies land or premises used as a private residence unless a business, trade or profession is carried on in that premises. Moving forward, lessors will likely need to consider incorporating specific terms into their leases to assign their obligations as owners under the New Act. For leases that pre-exist the enactment of the New Act, lessors may be exposed to significant additional legal responsibilities.
Currently, every contractor who directs the activities of an employer must ensure, as far as it is reasonably practicable to do so, that the employer complies with the Act, the regulations and the adopted code in respect of that work site. Under the New Act, every contractor must ensure, as far as it is reasonably practicable to do so, that every work site where an employer, employer’s worker or self-employed person works pursuant to a contract with the contractor, and every work process or procedure performed at a work site by an employer, employer’s workers or self-employed person pursuant to a contract with the contractor, that is under the control of the contractor does not create a risk to the health and safety of any person. Additionally, if the contractor is on a work site that has a prime contractor, the contractor must advise the prime contractor of the name of every employer or self-employed person with whom the contractor directs the work activities.
The concept of a prime contractor and the corresponding obligations under the Current Act apply at all work sites where there are two or more employers involved in work. The New Act proposes to restrict the obligations of prime contractors to "construction and oil and gas work sites" or a work site designated by a Director. However, the New Act does not provide further definitions of what is or is not a "construction work site" or "oil and gas work site". This is likely to create uncertainty as to when a prime contractor is required.
The New Act will also expand the obligations of a prime contractor, which will now include, but are not limited to, the following: establish a system or process to ensure compliance with the Act, regulations and code (this is suggested, but not required, under the Current Act); ensure that no person is exposed to hazards; consult and cooperate with the joint work site health and safety committee or health and safety representative; coordinate the health and safety programs; and inform all work site parties of any existing or potential work site hazards.
Currently, the prime contractor for a work site is the contractor, employer or other person who enters into an agreement with the owner of the work site to be the prime contractor, or if no agreement has been made or if no agreement is in force, the owner of the work site. Under the New Act, the person in control of the work site must designate who the prime contractor is in writing and must post the name of the prime contractor in a conspicuous place at the work site. If the person in control of the work site fails to designate a person as the prime contractor, the person in control of the work site is deemed to be the prime contractor.
These are material changes in law and we suggest that most prime contractor agreements pre-existing the New Act will need to be amended if this law is enacted.
Joint Work Site Health and Safety Committee
Currently, a joint work site health and safety committee is only required if so ordered by the Minister, which has only occurred in rare circumstances. Under the New Act, subject to one notable exception, an employer must establish a joint work site health and safety committee if the employer employs 20 or more workers and work is expected to last 90 days or more, or at any work site designated by the Director. If there are 20 or more workers in total from 2 or more employers and the work is expected to last 90 days or more, the prime contractor or, if there is no prime contractor, all employers, must coordinate the establishment of a committee for that work site. The committee must consist of at least 4 persons, of whom at least half represent workers who are not associated with the management of the work site. The members must be appointed in accordance with the constitution of the union or, if there is no union, the members must be selected by the workers.
It is somewhat unclear on the face of the New Act whether an employer having multiple work sites in Alberta, each with more than 20 workers, will be obliged to constitute a committee at each and every work site, or whether one committee encompassing all of the work sites will be acceptable. It is also unclear whether the 90 days of work must be with respect to work at the same work site. This latter issue will be particularly relevant to those companies in the service industry whose workers engage in episodic work assignments at various work sites.
We are pleased to read that an employer or prime contractor that is required to have a committee may, on approval by a Director, follow variations regarding the practice and procedures of a committee as are otherwise required under the Act, regulations and code. The criteria for achieving that approval are also found in the New Act.
Health and Safety Representative
Under the New Act, if the employer employs 5 to 19 workers and work is expected to last 90 days or more, the employer must designate a worker as a health and safety representative. The representative must be appointed in accordance with the constitution of the union or, if there is no union, the representative must be selected by the workers. If there are 5 to 19 workers in total from 2 or more employers and the work is expected to last 90 days or more, the prime contractor or, if there is no prime contractor, all employers, must coordinate the designation of a representative for that work site.
Duties of the Committee/Representative
The duties of a committee/representative will include the following: receiving, considering and disposing of concerns and complaints respecting the health and safety of workers; participating in the identification of hazards; developing and promoting measures to protect the health and safety of persons at the work site and checking the effectiveness of such measures; developing and promoting programs for education and information concerning health and safety; making recommendations to the employer, prime contractor or owner respecting the health and safety of workers; inspecting the work site at regular intervals; participating in investigations of serious injuries and incidents; and maintaining the records in connection with the receipt and disposition of concerns and complaints and the attendance to other matters relating to the duties of the committee/representative. The committee must meet at least quarterly, and any relevant health and safety documents provided by the committee must be readily available for inspection by an officer.
A member of the committee or the representative may take time away from his or her regular duties to do the following: attend health and safety training programs, seminars or courses of instruction; prepare for and attend each committee meeting or meeting with the employer or prime contractor; and carry out his or her duties as a committee member or representative. During such time, the committee member is deemed to be at work and is entitled to be paid.
Employer and Prime Contractor Involvement with Committee/Representative
The employer or prime contractor must meet with the committee regularly to discuss health and safety matters, and must ensure that the co-chairs of the committee or representative receive training respecting the duties and functions of a committee. If the committee or representative brings a health and safety matter to the attention of the employer or prime contractor and makes a recommendation to remedy the matter, then the employer or prime contractor must resolve the matter within 30 days. If the matter cannot be resolved within 30 days, then the employer or prime contractor must respond in writing, stating how the concern will be addressed and when the concern will be addressed. If the employer or prime contractor disagrees with the committee or representative, then the employer or prime contractor must give reasons why. If the parties cannot resolve the matter, it may be referred to an officer.
Right to Refuse Dangerous Work and Discriminatory Action
Under the Current Act, a worker is obliged to refuse to work if the worker believes, on reasonable and probable grounds, that an imminent danger exists. "Imminent danger" is defined as a danger that is not normal for that occupation, or a danger under which a person engaged in that occupation would not normally carry out the person's work. On being so notified, the employer must investigate and take action to eliminate the imminent danger. As discussed previously, the New Act replaces this positive worker obligation with a right to refuse work whereby a worker will be permitted to refuse to do work if the worker believes on reasonable grounds that there is a dangerous condition at the work site, or that the work constitutes a danger to the worker's health and safety, or to the health and safety of another worker or another person.
If the employer does not remedy the dangerous condition immediately, and if it is safe to do so, the employer must immediately inspect the dangerous condition in the presence of the worker and in the presence of the committee/representative or, if there is no committee/representative, in the presence of another worker selected by the worker. Until the dangerous condition is remedied, the worker may continue to refuse to work. The worker is entitled to the same wages and benefits that the worker would have received had the worker continued to work, and the employer may reassign the worker temporarily to alternate work. The employer cannot request or assign another worker to do the work until the employer has determined that the work does not constitute a danger. The employer must prepare a written report of the refusal to work, the inspection and action taken. The worker and the committee/representative must receive a copy of the report. Furthermore, when the employer or supervisor knows or ought to know of a condition at the work site that is or is likely to be dangerous to the health and safety of a worker, the employer or supervisor shall not require or permit any worker to do that work until the dangerous condition is remedied.
Health and Safety Program
Currently, if required by or under the regulations or the adopted code, a prime contractor, contractor or employer must state the person’s policy in writing for the protection and maintenance of the health and safety of that person’s workers on the work site, state the arrangements to implement that policy, and as far as is reasonably practicable, inform the workers of the policy.
Under the New Act, an employer who employs 20 or more workers must establish, in consultation with the committee, a health and safety program. This program must include, at a minimum, the following elements: a health and safety policy that states the policy for the protection and maintenance of the health and safety of workers at the work site; identification of existing and potential hazards to workers at the work site, including harassment, violence, physical, biological, chemical or radiological hazards and measures that will be taken to eliminate, reduce or control those hazards; an emergency response plan; a statement of the responsibilities of the employer, supervisors and workers at the work site; a schedule and procedures for regular inspection of the work site; procedures to be followed to protect the health and safety when another employer or self-employed person is involved in work at the work site, including criteria for evaluating and selecting and for regularly monitoring those employers and self-employed persons; worker and supervisor health and safety orientation and training; procedures for investigating incidents, injuries and refusals to work; procedures for worker participation in work site health and safety, including inspections and the investigation of incidents, injuries and refusals to work; and procedures for reviewing and revising the health and safety program if circumstances at the work site change in a way that creates or could create a hazard to workers. Further, this health and safety program must be reviewed and revised as appropriate every 3 years or more often if there is a change in circumstances at the work site that creates or could create a hazard to workers.
An employer with fewer than 20 workers must involve affected workers and any health and safety representative in hazard assessment and in the control or elimination of hazards identified in accordance with the regulations and code.
Serious Injuries and Incidents
We encourage employers to review the New Act requirements for incident reporting as they have been rewritten considerably. The following is only a partial summary.
The New Act clarifies that an injury or accident resulting in the death of a worker must be reported. This is a welcome change as the Current Act simply refers to an injury or accident resulting in death, which put into question the potential reporting of a public fatality at a work site (which is already captured by other legislation).
Currently, an injury or accident that results in a worker's admission to a hospital for more than 2 days must be reported to a Director of Inspection. Under the New Act, any injury or incident that results in a worker being admitted to a hospital, regardless of how long that admission is for, must be reported. This will include every incident for which a physician writes admitting orders to cause a worker to be an inpatient of a hospital, but will exclude a worker being assessed in an emergency room or urgent care centre without being admitted.
The New Act also introduces a significant list of events that must be reported if they occur at a mine or a mine site, which are defined terms in the New Act.
As an added requirement, under the New Act every injury or incident that has the potential of causing serious injury to a person (near misses) must be reported to a Director of Inspection. Like the Current Act, the New Act does not define a serious injury.
Furthermore, for every serious injury or accident and for every near miss, the prime contractor or, if there is no prime contractor, the employer, must provide a report to a Director of Inspection, the committee or representative or, if there is no committee or representative, must make it available to the workers. The report must outline the circumstances of the injury or incident and the corrective action undertaken. The investigation must be conducted with the participation of the committee or representative. The positive obligation to automatically provide a copy of the investigation report to a Director of Inspection is materially different from the obligation under the Current Act, which is to simply prepare a report and make it readily available if requested by an investigating officer (which obligation also exists under the New Act).
Stop Work Orders
The Current Act provides that if an officer is of the opinion that a danger to the health or safety of a worker exists in respect of that worker's employment, then the officer may order the work to be stopped, order any worker or other person present to leave the work site, and order the measures specified by the officer. The New Act expands this power by allowing an officer to do one or more of the following if the officer is of the opinion that activities that involve, or are likely to involve, a danger to the health and safety of workers are being carried on, or are about to be carried on, by workers of the same employer at more than one work site: the cessation of those activities; that all or part of any of the work sites be vacated; that no resumption of those activities be permitted at any of the worksites; and that the employer take measures specified by the officer. Perhaps most significant among these changes is the ability for an officer to expand the scope of their stop work order following an incident to all of an employer's work sites, not just the one implicated in an incident. The New Act also provides that while a stop work order is issued, any worker who is directly affected by the order is entitled to the same wages and benefits that the worker would have received had the stop work order not been issued.
Stop Use Orders
The Current Act allows an officer to order a worker to stop using or to refrain from using a tool, appliance or equipment that the officer opines is not in safe operating condition or does not comply with the adopted code. The New Act’s provision is much broader. The officer may order the prime contractor, contractor, owner, employer, supervisor, self-employed person or worker to take any measures specified by the officer that the officer considers necessary for the purpose of removing the source of the danger or to protect any person from the danger. While a stop use order is issued, any worker who is directly affected by the order is entitled to the same wages and benefits that the worker would have received had the stop work order not been issued, and the employer may reassign the worker to alternate work.
Workers’ Rights on Inspection and Investigation
While the New Act purports to expand and confirm workers’ rights in a variety of ways, and harmonize Alberta’s legislation with other Canadian jurisdictions, one issue that it did not address is a worker’s right to have another person present while they are being interviewed by an officer during an inspection or an investigation. As this right exists in multiple jurisdictions in Canada and has considerable merit, we query why this gap continues to exist.
Reviews and Appeals
We encourage employers to review the detailed procedures for reviews and appeals of orders and decisions in the New Act. This area has been completely rewritten and while time will determine whether the new procedures afford a more standardized, timely and cost effective means to have issues resolved, at first blush some of the drafting is an improvement over the current procedure. For some matters, a party can request a "review" that is conducted by a Director of Inspection. It is notable, however, that one of the Director’s discretionary steps is to refer the matter to the appeal body, which is no longer the Alberta OHS Council but the Labour Relations Board. Certain other matters may be appealed to the Labour Relations Board.
Publication of Information
The New Act proposes to publish documents and information arising from the administration of the Act, regulations and code at regular intervals, including: any available data on disabling injury claims, disabling injury rates, person years of work, lost time claims, lost time claims rates, motor vehicle fatalities, work site incident fatalities and occupational disease fatalities of employers and self-employed persons; any orders issued to prime contractors, contractors, suppliers, service providers, employers and self-employed persons; administrative penalties issued to any person; tickets issued to employers, but not those issued to workers; subject to the Freedom of Information and Protection of Privacy Act, investigation reports completed by an officer; acceptances issued to any person; and approvals issued to any person.
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. The Government should be commended for its attempts to clarify some long recognized ambiguity existing under the Current Act, and for rationalizing the imposition of the prime contractor obligation to only certain discrete types of work sites which is harmonious with the approach taken in Saskatchewan and Manitoba. However, there are aspects of the provisions of the New Act that are somewhat troubling and we would suggest that the New Act warrants further consultation with industry before being pushed into force of law. The removal of a positive duty at the worker level to refuse dangerous work is a step backwards and promotes the abdication of personal responsibility that we all have at every work site in Alberta.
When the New Act becomes law, employers everywhere should be prepared to dedicate significant resources to ensure all of these significant changes are implemented within their health and safety systems. The changes should not be underestimated.