Highlights of Bill 47's New Occupational Health and Safety Act
Bill 47, the Ensuring Safety and Cutting Red Tape
Act 2020 was given first reading in the Alberta legislature
on November 5. Bill 47 makes significant changes to the Workers'
Compensation Act and includes an entirely new Occupational
Health and Safety Act (OHS Act).
All
of the changes pose a danger to the health and safety of workers and
the people of Alberta. They are all intended to make sure that
governments and employers cannot be held to account as concerns their
duties and responsibilities as required in a modern society. The
major changes to the OHS Act concern the responsibility of
employers, the operation of joint worksite health and safety committees
and the right to refuse unsafe work. Part 1 --
General Obligations The obligation of employers
towards people in the vicinity of a worksite is modified to make it
more difficult to find an employer responsible for adverse health and
safety impacts. The section of the Act setting out
the responsibility of employers to provide proper training no longer
stipulates that training take place before a worker: a)
begins performing a work activity, b) performs a
new work activity, uses new equipment or performs new processes, or
c) is moved to another area or worksite. Part
2 -- Health and Safety Committees,
Representatives and
Programs The
OHS Act requires that joint worksite health and safety committees be
established on worksites with more than 20 workers. On
worksites with five to 19 workers, a safety representative is required.
The
current legislation provides for selection of workers' representatives
according to the union constitution where the workers are unionized, or
through selection by the
workers where no union exists. The new legislation gives the employer
the power to appoint the "workers' representatives" after consultation
with the union, if one exists.  The Act no longer
says that employers are required to consult and cooperate with the
joint worksite health and safety committee or the health and safety
representative, as applicable. Hazard assessments are now controlled by
the employer, not the joint committee. The joint health and safety
committees are no longer mandated to develop and
promote measures to protect the health and safety of persons at the
work site and check up on the effectiveness of such measures. They are
no longer mandated to develop and promote programs for education and
information concerning health and safety, to inspect the worksite at
regular intervals, or to participate in investigations of serious
injuries and incidents at the work site.
The duties
left in place for joint health and safety committees strip them of any
meaningful role in decision-making. Employers control everything; from
appointing the "workers' representatives," to hazard assessments,
inspections of accidents or near-misses, what happens to
recommendations, and what education and information the employer
provides to workers. Part 3 -- Right to Refuse
Unsafe Work In 2014, when Jason Kenney was the
federal Minister of Employment and Social Development, he introduced
changes to the Canada Labour Code which have now been incorporated into
the new Alberta Occupational Health and Safety Act.
The first is a new definition of danger. The Act currently states that
a worker "may refuse to
work or to do particular work at a work site 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." Bill
47 replaces "danger" with "undue hazard" which is defined as "a
hazard that poses a serious and immediate threat to the health and
safety of a person." There is no definition as to
what can be called "serious." Further the addition of "immediate
threat" would allow employers to challenge a refusal to work where the
worker is exposed to chemicals or other substances known to cause
cancer, lung disease and other grave and life-threatening or fatal
conditions, or a refusal to work without proper
personal protective equipment. The current
legislation requires that the employer must either remedy the dangerous
condition immediately, or conduct an inspection, and provides for the
worker to be present, as well as a representative of the joint health
and safety committee or safety representative or another worker
selected by the worker, so long as it is safe and reasonably
practicable to do so. In the new legislation,
employers are still required to conduct an inspection, but no longer
have to do so in the presence of the worker or a workers'
representative. The concerned worker may never know whether there has
even been an inspection. A
worker who has refused unsafe work can be required to remain at work
and be assigned other duties, so long as there is no loss of pay. But
the employer can also decide to send a worker home and then does not
have to pay the worker. This permits an employer to punish a worker,
and to discourage workers from refusing to work in
unsafe conditions. The current Act says that employers are prohibited
from carrying out discriminatory action against a worker who refuses
unsafe work. The proposed legislation under Bill 47 changes this to
"disciplinary action." There is a world of difference. What work and
shifts a worker is assigned, sending them home without pay, refusal of
promotions are all discriminatory actions which the employer is no
longer prohibited from carrying out.  If a worker
invokes his or her right to refuse dangerous work another worker can be
assigned if the employer says they have conducted an inspection and there is no undue
hazard. If the employer assigns another worker to do the work that a worker refused to do because it was unsafe, the legislation
removes the employer's obligation to inform the
second worker of their right to refuse unsafe work.
The
employer also would no longer have to inform the joint health and
safety committee or the safety representative as soon as possible.
Bill 47 also incorporates another change made to the Canada
Labour Code when Kenney was federal Minister of Employment and
Social Development. The change to the code gave the Minister the authority
to refuse to investigate a complaint it considered to be without merit
or to be in bad faith. The proposed new Alberta OHS Act states:
"An officer may refuse to investigate a complaint where the officer
[Occupational Health and Safety Officer] is of the opinion
that the complaint is without merit, or is frivolous, trivial,
vexatious, filed with improper motives, or otherwise an abuse of
process." Bill 47 also adds a clause which states
that officers shall refuse to accept a complaint filed by a worker who
is "bound by" a collective agreement. In other words the government
takes no responsibility and considers that the union grievance
procedure should be used to challenge an employer's actions against a
worker who has refused unsafe
work. Finally, if it is determined that a worker
has been disciplined because they refused unsafe work, the obligation
of the employer to pay any lost wages or benefits is reduced by any
wages or benefits the worker earned elsewhere. Bill
47 is an attack on workers who are on the front line of defence against
COVID-19 and to safeguard the health and safety of workers and the
whole society at all times. It is a cowardly attack on the rights of
workers and must be immediately withdrawn.
This article was published in
Number 78 - November 17, 2020
Article Link:
Highlights of Bill 47's New Occupational Health and Safety Act
Website: www.cpcml.ca
Email: editor@cpcml.ca
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