Bill 47: Ensuring Safety and Cutting Red Tape; Significant Changes to Occupational Health and Safety Legislation in Alberta

On December 9, the Alberta Legislature passed Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020. This legislation reverses many of the changes to the current Occupational Health and Safety Act (the “OHS Act”) put in place by the previous government. Most of the changes to the OHS Act will take effect September 1, 2021.

The changes ushered in by this Bill will significantly alter the current OHS Act and the Workers’ Compensation Act.

The Government of Alberta has indicated that the Bill was put forward as a means to eliminate duplication and simplify the language of the current OHS legislation, in order to make it easier to understand and follow. The changes are intended to reduce the costs for employers while streamlining procedures and encouraging workers and workplaces to better manage risks. The Government of Alberta has stated that the changes are not to benefit employers at the expense of workers’ rights, protections, and entitlements, but rather will result in healthier and safer workplaces and will support investment attraction and job creation.

The changes to the OHS Act are broad and substantive. A summary of some of the key changes are as follows:

Employers

• Self-employed individuals are once again deemed to be an employer. This means that individuals who are working as independent contractors must comply with the obligations of an employer rather than a worker.

• An employer’s requirement to ensure the health, safety, and welfare of individuals around a worksite has been narrowed. The definition of a hazardous work site has also been narrowed.

• Employers are no longer explicitly required to adequately train all their workers in all matters necessary to protect their health and safety before a worker performs a new work activity, uses new equipment or performs new processes. These changes narrow the requirements to be more general, requiring only that employers ensure workers are adequately trained in all matters necessary to perform their work in a healthy and safe manner.

• Changes have been made to the obligations of employers to have health and safety information readily available. The change narrows the type of information that must be readily available to now only “work site hazards, controls, work practices and procedures” and the information shall be provided to the joint health and safety committee, the worker, and the prime contractor.

• Changes have been made to the requirements for payment of workers who are directly affected by a stop work order. The requirement to continue to pay the worker the same wages and benefits that the worker would have received had the stop work order not been issued have been removed.

• The calculation of the number of employees on site now only considers ‘regularly employed’ workers at a work site, omitting the previous requirement to also consider self-employed persons where the work is expected to last 90 days or more and prime contractors.

Workers

• In addition to all other obligations under the OHS Act, workers now have a positive obligation to engage in any training provided by the employer and an obligation to not perform work that they are not competent at that may endanger the worker or others, unless they are under direct supervision of a worker who is competent to perform the work.

• Workers can now only refuse dangerous work that is an undue hazard rather than the previous categorization of a ‘dangerous condition’, which was not defined. Undue hazards are explicitly described as a hazard that poses a serious and immediate threat to the health and safety of the person.

• The changes significantly narrow the multitude of categories that previously existed for when a worker cannot be subject to disciplinary action. This was previously known as discriminatory action. These categories have been replaced by a general statement that no person shall take any disciplinary action against a worker only by reason of that worker acting in compliance with the OHS Act, the regulations, the OHS Code or an order used under the OHS Act.

Contract Employees

• The term “contractor” was replaced with the term ‘contracting employer’. This term is defined as 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.

• Every contracting employer who directs activities at the work site must ensure that the employer it directs, as far as reasonably possible, complies with the OHS Act, the regulations, and the OHS Code. Every contracting employer must 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 on the work site.

Prime Contractors

• The changes clarify under what circumstances a prime contractor is required. Every construction work site and oil and gas work site or a work site or class of work site designated by a Director must have a prime contractor if there are 2 or more employers involved in work at the work site.

• For work sites that do not meet the new definitions of a construction work site or an oil and gas work site, the person in control of any work site may enter into an agreement in writing to designate a party as the prime contractor of the work. On sites with a prime contractor, the prime contractor no longer needs to be advised of the names of all the supervisors of the workers on the work site.

Supervisors

• The changes remove the requirement to ensure that a supervisor is competent to supervise every worker under the supervisor’s supervision.

• The changes remove the requirement that the supervisor will ensure workers under their supervision use all hazard controls and personal protective equipment.

Health and Safety Committees

The requirements of Joint Health and Safety Committees have been changed. Health and Safety Committees are required for any employer who regularly employees 20 or more workers. Some of the changes are as follows:

• The requirement that the work be expected to last 90 day or more has been removed.

• Joint Health and Safety Committees will no longer be mandatory on work sites with multiple employers and a prime contractor.

• Other specific rules regarding Health and Safety Committee and Representative rules have been moved into regulation.

The duties of a Joint Health and Safety Committee have been reduced to participating in the employer’s hazard assessment, making recommendations to the employer respecting the health and safety of workers, and reviewing of the employer’s work site inspection documentation. The Joint Health and Safety Committee previously had a more active role. Joint Health and Safety Committees are no longer required to meet at least quarterly and the detailed requirements for the calling of these meetings have been removed.

• The provisions pertaining to training of committee members have been removed, along with the requirements that a member of a Joint Health and Safety Committee be allowed to take time away from work for meetings and that a committee member be compensated for their time at the member’s applicable rate of pay. Now a Joint Health and Safety Committee shall hold its meetings and carry out its duties and functions only during normal working hours.

Health and Safety Programs

• The detailed obligations and requirements for Health and Safety Programs have been removed and replaced only with the limited requirement that employers who regularly employ 20 or more workers or on the direction of a Director, subject to the OHS Code, establish and implement a health and safety program.

Appeal and Review Procedure

• The appeal procedure of having the Director of Inspection review a decision or order in a report under an order to ensure compliance, stop work orders, and stop use orders has been removed and now appeals proceed directly to the Labour Relations Board.

Incident Investigation and Reporting

• The obligations on employers and prime contractors for reporting an incident have been substantially changed.

Acceptances, Allowances, and Approvals

• Changes have been made reducing the obligations on a party seeking an acceptance, allowance or approval from a Director to deviate from the OHS Code.

Takeaways

This legislation will significantly alter the current occupational health and safety regiment for workplaces in the province. Employers of all sizes, and in all sectors, will need to ensure that they are prepared for the forthcoming changes and allow sufficient time for planning.

If you have questions about how these changes to the law will affect your workplace, please reach out to us.