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
- Peggy
Morton - 
•
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
- Peggy Morton -
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.
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.
Tragic Death of Worker on Trans
Mountain Pipeline
- André Vachon -
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.
(To
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