November 17, 2020 - No. 78

Alberta Bill 47, Ensuring Safety and Cutting Red Tape Act 2020

Build the Resistance to Attacks on Workers' Health and Safety

Highlights of Bill 47's New Occupational Health and Safety Act

Tragic Death of Worker on Trans Mountain Pipeline
Workers' Control Over Matters of Health and Safety Is Essential - André Vachon

Alberta Bill 47, Ensuring Safety and Cutting Red Tape Act 2020

Build the Resistance to Attacks on
Workers' Health and Safety

November 5, 2020. Alberta workers stand with hospital workers. One of many actions against
the Kenney government's cuts and restructuring.

The Kenney government introduced Bill 47, the Ensuring Safety and Cutting Red Tape Act 2020 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.

Bill 47 is the latest in a series of legislated attacks on workers and their defence organizations. While the safety and rights of workers are acknowledged in words, Bill 47 significantly lowers the bar when it comes to employer obligations, deprives workers of the right to select their own health and safety representatives, guts the joint worksite health and safety committees, imposes new definitions of unsafe work, and opens the door for employers to discriminate against workers who refuse unsafe work.

This legislation was introduced at a time when COVID-19 is spreading across Alberta at an alarming rate, as is the case across the country. There were 1,026 new COVID-19 cases on November 14 in Alberta. Many, if not most of the biggest worksites, some of which are also people's residences (such as resource industry work camps), have outbreaks, including most hospitals in Edmonton and Calgary, large numbers of long-term care and seniors' homes, oil sands operations, warehouses, manufacturing, and oil refining. Unions representing health care workers and hundreds of doctors are speaking out, expressing alarm and making concrete proposals to government to get control of the situation.

It speaks volumes about the character of the Kenney government that, in the midst of a pandemic in which workers in every sector are putting themselves on the line to fulfil their responsibility to society, it is taking extraordinary measures to deprive workers of any say in ensuring that their workplaces are healthy and safe. It is not a case of Kenney fiddling while the province burns. It is a case of government actively working to suppress the firefighters. It is the human factor, the mobilization of everyone, and particularly the working class, to deal with the crisis which is decisive. The more the workers take the lead in fighting for solutions, the more they appreciate their capacity to lead and it is this participation and consciousness that is the target of the government measures.

The Kenney government keeps trying to use the crisis as cover for one attack after another on their rights. It sees the pandemic and economic crisis in Alberta as an opportunity to destroy all arrangements which give workers a say in matters that affect them deeply. Recent actions of health care workers and the broad public support that their resistance received powerfully show that Alberta does not belong to the rich and the people do not accept the criminalization of workers who are standing up for their rights and for public services.

Refusing to involve the workers, shock and awe, and the use of arbitrary powers are not going to keep the economy going. What is needed is to mobilize workers in every workplace to implement the measures necessary. Whether or not a "sharp break" takes place, containing coronavirus cannot succeed without the active participation of the working people in decision-making. Experience shows it cannot be left in the hands of employers or a government which sees its only responsibility as paying the rich.

Workers are demanding that their voices be heard on health and safety issues, particularly when it comes to a virus that is ravaging workers and communities around the world. Workers in industry and health care have been fighting to make workplaces safe. Workers in essential services have fought to keep everyone safe, risking their own health and very lives to do so. Wherever the measures proposed by workers have been implemented, they have been effective and where there has been refusal of government and employers to meet the reasonable demands of the workers the results have been disastrous.

It is the workers and their collectives who have fought for proper personal protective equipment, physical distancing in the workplaces, paid sick leave for workers off work because of COVID-19, one-site rules to keep COVID-19 from spreading from one seniors' home to another, for adequate staffing in health care and seniors' care, for adequate wages and full-time work so workers do not have to work multiple jobs, and more. Workers and their collectives have fought for the right to use their professional judgement to decide what measures are required, and to be involved in the decision-making. They have stood up to employers pressuring workers to come to work in violation of public health guidelines.

In a modern society, the responsibility of governments is to protect the polity and all its members and insist that employers do the same. Every collective and individual in society has the right to this protection based on standards established scientifically including the collective knowledge and experience of the society and the working people. The same duty falls on every member and collective in society. Bill 47 shows what kind of battle the workers are facing.

(Photos: WF, Radical Citizen Media.)

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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.

(Photos: WF, AFL.)

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Tragic Death of Worker on Trans Mountain Pipeline

Workers' Control Over Matters of Health and
Safety Is Essential

Samatar Sahal, a 40-year-old pipeline construction worker with SA Energy, was killed during construction of the Trans Mountain Pipeline at a west Edmonton worksite on October 27. He was pinned and crushed by a large, heavy trench box cross-member as it was being disassembled, and died at the scene. Workers' Forum expresses sincere condolences to Mr. Sahal's family, friends and co-workers. He is remembered as a highly skilled worker, a humble man and devoted husband and father of four children.

Samatar Sahal

Following Mr. Sahal's death, the Canadian Energy Regulator (CER) directed Trans Mountain to "ensure that the contracting company, SA Energy Group, immediately cease use and operation of trench boxes until it can demonstrate that they can be used, assembled and disassembled safely. Furthermore, Trans Mountain shall undertake a root cause analysis of the fatality and identify and implement corrective and preventive actions."

The order also required Trans Mountain to confirm it has a process to train workers in the safe use of trench boxes along the entire length of the project, and confirm it has the inspectors and oversight capability to adequately oversee high-risk project activities for the Trans Mountain Expansion Project (TMX), and to address any identified gaps.

Alberta Occupational Health and Safety is conducting an investigation, while the CER shares responsibility for overseeing safety measures for the TMX.

The CER directive raises many questions, never mind that the federal government is speaking to itself, since it owns 100 per cent of the TMX. Why does it take the death of a worker for the CER to even ask if proper safety precautions and training are in place? How does it justify issuing permits for construction and only now asking such questions? Why are pipeline workers on other sites treated as bystanders and not active participants in the investigation and information blackouts imposed?

When a fatality occurs at a construction worksite, work stops, and Occupational Health and Safety imposes a blackout on information related to the incident. Years may go by before a report is published, so workers are also deprived of information which could be invaluable in making their own workplace safer.

Workers have no opportunity to contribute our vast collective knowledge, including experience of previous accidents and "near misses," to the investigation. No one asks for our input on the causes and possible measures to prevent such tragedies. We are the ones with boots on the ground, literally. We spend our lives on job sites and our input is crucial if we are to deal effectively with workplace safety.

Construction is a hazardous occupation, and pipeline construction particularly so. Workers have to deal with narrow rights-of-way, cramped spaces, many vehicles, very heavy equipment and huge joints of pipe. Crews are expected to cover a certain distance every day, so we are often on the move. We have to deal with changing weather and climate conditions, different terrain every day, and frequent personnel changes. As a result, the potential for injuries and fatalities is very high.

As things stand, employers are permitted to use unsafe practices until the rate of death and injuries forces them to make changes. This has to end. It is unacceptable that it is only after the death of a worker, and sometimes many deaths, that practices are deemed unsafe or even that serious investigation takes place.

Contractors keep repeating that employees are their number one concern, but really they consider us expendable. Someone is killed? Tragic! But we'll find a replacement. Workers continue to be injured, crippled, maimed and killed and we are forever reacting to accidents and incidents. Through our collective efforts we have ended many dangerous work methods and procedures, but the profit motive and lack of control by the workers remains and creates havoc.

Bill 47 would make the situation even worse. It is unacceptable. We must exercise much more control over these conditions of work that have such a profound effect on our lives. Training of all involved is absolutely crucial. Workers may, in certain circumstances, determine that certain projects cannot be performed without loss of human lives and as such must be modified, or even abandoned, until such time as they can be done safely. Control over matters of health and safety is a vital part of establishing a new direction for the economy.

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