Occupational Health and Safety

1.1

The OHS Regulation – addresses certain requirements related to government policy and administrative matters.

The OHS Act – sets out the basic duties of owners, employers, workers, contractors and suppliers. It gives the government power to make regulations and codes (i.e., rules) about health and safety at the workplace. The OHS Act sets standards to protect and support the health and safety of workers throughout the province and gives Officers the authority to visit work sites and enforce the requirements.

The OHS Code – specifies all the technical standards and rules that employers and workers must comply with to fulfill their obligations. The Code covers different topic areas, such as hazard assessment and control, general safety, noise, chemical hazards, violence in the workplace and first aid, to name a few. There are 39 parts (i.e., chapters) in the Code.

DUE DILIGENCE

Due diligence is the level of judgement, care, prudence, determination and activity that a person would reasonably be expected to do under particular circumstances. Failure to prove that an employer or worker had been duly diligent in complying with the OHS legislation can result in significant penalties.

The OHS Act states:

2 (1) Every employer shall ensure, as far as it is reasonably practicable for the employer to do so,

(a) the health and safety of

(i) workers engaged in the work of that employer, and

(ii) those workers not engaged in the work of that employer but present at the work site at which that work is being carried out, and

(b) that the workers engaged in the work of that employer are aware of their responsibilities and duties under this Act and the regulations.

In addition,

• Suppliers are responsible to ensure, as far as it is reasonably practicable to do so, that anything the supplier supplies complies with the Act, Regulation and Code.

• Contractors who direct the activities of another employer at a work site shall ensure, as far as it is reasonably practicable to do so, that that employer complies with the Act, Regulation and Code.

WHAT DOES "REASONABLY PRACTICABLE" MEAN?

At first glance, reasonably practicable looks like a pretty subjective way of determining guilt or innocence. However, "reasonably practicable" is a legally defined term that is assessed using the "reasonable person test."

What would a dozen of your peers consider reasonable in a similar set of circumstances? Your peers would likely look at what you did and compare it against what they do. Some of them might do more, others less. Industry standards and practices would also be considered. The result would be a balanced and wise judgement that could be defended. Due diligence puts the onus on an employer and workers to ensure they are working in compliance with the OHS Act, Regulation and Code.

WHO IS NOT COVERED BY THE OHS ACT?

Alberta's OHS legislation applies to most workers and employers in the province. The exceptions are:

• anyone who lives in a private dwelling and does work in, to or around that dwelling

• domestic workers, such as nannies or housekeepers, in a private dwelling

• farmers, ranchers and certain agricultural workers.

In addition, federal government employees and those who work in federally regulated industries, such as banking or telecommunications, fall under Part 2 of the Canada Labour Code. This Code has requirements similar to Alberta's OHS legislation and is enforced by federal government officers.

GENERAL OBLIGATIONS

Employers

Under the OHS Act, employers are responsible for ensuring the health and safety of all workers at the work site. Specific requirements are outlined throughout the OHS Act, Regulation and Code, depending on the work that is to be done.

You meet the definition of employer if:

• you employ one or more workers

• you are designated to represent the employer

• you are a director or officer of a company whose responsibility is to oversee worker health and safety

• you are self-employed.

(OHS Act, Section 1, 2(1))

WORKER RIGHTS AND RESPONSIBILITIES

The OHS Act is in place to protect the health and safety of workers. It does this by establishing certain rights but it also sets out some expectations, i.e., responsibilities, that workers must follow.

The right to a safe workplace: employers are required to perform a hazard assessment to identify actual and potential hazards associated with a job. Once hazards are identified, they must be controlled so that workers do not become injured or ill. If possible, workers should be involved in this process.

The right to know: employers must provide information about the assigned job and any hazards in that job. If workers do not get training or are left with questions, there are some things they should ask:

• What hazards are there and how could they affect my health and safety?

• How do I do this job safely?

• What protection do I need so that I don't get injured or become sick?

The right to participate in health and safety discussions and health and safety committees.

The responsibility to refuse unsafe work: the OHS Act prohibits a worker from doing any work he or she feels poses a risk of imminent danger.

Section 35 outlines the workers' duty to refuse work in such a case.

Example #1

• A construction worker who has not been trained to handle explosives is being asked by his employer to destroy some explosives left behind at the work site by another employer. (Handling explosives is a danger normally present for blasters, who are trained and certified to safely handle them, but not for the construction worker.)

• The construction worker must refuse to carry out the work and inform his employer of his refusal and the reasons.

• The employer must investigate and take action to eliminate the imminent danger; e.g., the employer could require the blasting company to come back and dispose of its explosives.

Example #2

• A worker has been hired by a construction company to deliver parts and supplies to different job sites where the company has crews working. The worker has a valid driver's licence and demonstrated her competence in operating the company's trucks.

• One day, the worker discovers that the brakes are shot on one truck, making it unsafe to drive and she has been asked to make a delivery with this truck.

• She must refuse to make the delivery with this truck and inform the employer of her refusal and the reasons for it.

• The employer must investigate and take action to eliminate the imminent danger.

For example, the employer could:

• assign the worker to another vehicle

• fix the problem on the truck.

Protection against Reprisals

There are provisions under the OHS Act (Sections 36 and 37) to protect workers from reprisal. If a worker is terminated or disciplined for reporting a dangerous situation, for refusing to carry out imminent danger work or acting in compliance with with the OHS legislation in any other way, he or she can file a complaint with an OHS Officer.

Prime Contractor

On construction projects, there are often several employers, each with their own workers, equipment and jobs to do. If everything is not properly managed, the site can get confusing and people can be injured.

Therefore, if there are two or more employers involved in work at a work site, at the same time, there must be a prime contractor.

The purpose of a prime contractor is to, as far as it is reasonably practicable to do so, ensure the OHS Act, Regulation and Code are complied with at the work site.

JOINT WORK SITE HEALTH AND SAFETY COMMITTEES (JWHSCS)

While many work sites in Alberta have a voluntary JWHSC, there are provisions in the legislation (Section 31 of the Act and Part 13 of the Code) to order a company, by Ministerial Order, to establish a JWHSC. If this is the case, there are specific requirements, clearly outlined in Part 13 of the Code, that must be met.

The purpose a JWHSC, whether voluntary or legislated, is to address health and safety concerns in the workplace. It is usually made up of equal representation from management and front-line workers. The committee will hold meetings and minutes will most likely be posted in a central location for the employees to read. Workers are encouraged to find out about their JWHSC and to read the minutes to stay abreast of health and safety concerns at their workplace. Workers may be asked to sit on the committee; this is a great opportunity to have a positive impact on the health and safety of the workplace.

REPORTING SERIOUS INJURIES AND DEATH AT THE WORKPLACE

When an incident occurs that results in, or might have resulted in, a serious injury to a worker, the employer must notify the nearest Workplace Health and Safety office as soon as possible.

If a worker is involved in or aware of a serious incident, he or she should report it immediately to a supervisor to ensure that it can be investigated. The purpose of an investigation is to determine what went wrong so that appropriate preventative measures are implemented to prevent recurrence. Failure to report an incident can result in a prosecution against the company or the employer.

(OHS Act, Section 18)