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:
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:
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:
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.
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:
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.
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.
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.
The New Act significantly changes how employers or prime contractors must report certain events by amending or removing several current requirements.
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.