Canada: Changes To Day-To-Day Operations Under Alberta's Amended Occupational Health And Safety Act

On June 1, 2018, amendments to Alberta's Occupational Health and Safety Act (the "New Act") came into force, significantly expanding the nature of the health and safety obligations owed by employers and businesses in Alberta.

This article focuses on one of the areas in which changes have been made: the changes to day-to-day operations of an employer to address safety at a work site. Please see additional articles, which address the expansion of reporting obligations and the government's authority in response, and the changes to the obligations of various parties, such as employers, prime contractors, contractors and workers.

Day-to-Day Operations

The changes with respect to the day-to-day operations of an employer relate to addressing safety at a work site.  Previously, a joint work site health and safety committee was only required if ordered by the Minister. Now, 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.  The Director can also order any other work site to establish a health and safety committee. 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 joint work site health and safety committee for that work site. The health and safety 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 of the committee must be appointed in accordance with the constitution of the union or, if there is no union, they must be selected by the workers.

Notably, an employer or prime contractor may, on approval by the Director, follow variations regarding the practice and procedures of a committee otherwise required under the New Act, regulations and code. The criteria for achieving that approval are also found in the New Act.

Health and Safety Representative

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 designate a representative for that work site.

Duties of the Health and Safety Committee/Representative

The duties of a committee/representative 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; 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 health and safety representative regularly to discuss health and safety matters, and must ensure 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, the employer or prime contractor must resolve the matter within 30 days. If the matter cannot be resolved within 30 days, 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 that there is a health and safety concern or with the recommendations, the employer or prime contractor must give reasons. If the parties cannot resolve the matter, it may be referred to an officer.

Right to Refuse Dangerous Work and Discriminatory Action

Previously, a worker was obliged to refuse to work if the worker believed, on reasonable and probable grounds, that there was an imminent danger. "Imminent danger" is 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. When notified, the employer had to 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, if safe to do so, the employer must immediately inspect the dangerous condition in the presence of the worker and the committee/representative or, if there is no committee/representative, 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 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 also 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. Additionally, 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

Previously, if required by or under the regulations or the code, a prime contractor, contractor or employer had to create a written policy for the protection and maintenance of the health and safety of workers on the work site, state how the policy would be implemented, and as far as is reasonably practicable, inform the workers of the policy.

Now, an employer who employs 20 or more workers must establish, in consultation with the health and safety committee, a health and safety program. This program must include, at a minimum, the following: a health and safety 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. The health and safety program must be reviewed and revised as necessary 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.

Thus, the New Act increases the obligations of employers to have health and safety programs in place and to establish health and safety committees.  It is advisable to review the New Act to ensure all work sites comply with these new requirements.

Read the original article on GowlingWLG.com

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