Wednesday, January 4, 2012

OHS prosecutions up in 2011

Over the Christmas break, the government rolled out its 2011 occupational health and safety prosecutions. I love how potentially contentious news releases appear over the holidays when no one is paying any attention.

The short version is there were 20 prosecutions in 2011 (although one looks like a prosecution for not paying an earlier creative sentence!) with $3.5m in fines levied. This is a significant increase in prosecutions and fines over 2009 (7 prosecutions, $457k in fines) and 2010 (11 prosecutions, $1.7m in fines) although it lags behind 2008 (22 prosecutions, $5.1m in fines). The offenses span 2003-2008.

There are a couple of notable aspects to these prosecutions. While the number of prosecutions is up, it still pales in comparison to the total number of reported fatalities and serious injuries (about 50,000 per year in Alberta). While my computation skills are a bit dodgy, that means roughly 0.04% of serious injuries are subject to prosecution. Now, admittedly, not all of those injuries entail violations that warrant prosecution.

The reason I point this out, however, is the Minister’s comments on prosecutions:
“My first choice is to have no workplace injuries or fatalities, no charges, and no convictions,” said Dave Hancock, Minister of Human Services. “However, when the law is broken, we need to send strong messages that the health and safety of Albertans must be a priority.”

I think it is fair to ask whether a handful of prosecutions really sends a strong message or acts as a meaningful deterrent for employers? My sense is that it doesn’t—these serve more as show trials that make the government appear like it cares about workplace injury than a meaningful effort to prevent injuries or punish employers.

Those few employers who get convicted are fined. The government’s press release touts that 67% of the fines have been paid to community groups via creative sentencing. I find myself conflicted about creative sentencing.

On the one hand, the fines can be directed to programs that directly bear upon occupational health and safety. That seems like a good thing. On the other hand, creative sentencing seems to lighten the stigma that should attach to maiming and killing workers via unsafe working conditions. “Oh look what good guys Syncrude are—they paid $365,000 to Keyano College.”

Further, some of these payments go to industry associations. That is to say, basically employers who maimed and killed workers are directing their fine to employer organizations to underwrite the cost of safety programming that employers ought to pay for themselves as part of their obligation to operate safely under the Act. That seems wrong.

If one purpose of prosecution is indeed to deter employers from organizing work unsafely, it seems to me that there ought to be more prosecutions (or some sort of penalty short of prosecution) such that employers have a reasonable chance to being penalized for violating OHS laws.

And, where an employer has been done something to result in a conviction, the fines should be significant. Yes, $100k+ fines seem significant to you or me, but not to large employers. One of my correspondents has indicated that fines can even be deducted from revenue (i.e., are a tax write off). I’m having a hard time believing that is true, but perhaps I am na├»ve.

Perhaps more effective (since injuries show little sign of significant abatement after a decade of government attention) might be using the provisions for prosecution under the Criminal Code to seek jail time for negligent employers. If prosecution is supposed to be a deterrent and we accept the government is only going to prosecute a fraction of all cases, perhaps the spectre of jail time will motivate employers to improve their safety practices.

-- Bob Barnetson

2 comments:

  1. Another interesting point to consider - check out who were major players with fatalities and who still has their COR - a fatality is a pretty solid piece of proof that something is amiss.

    Also it wouldn't hurt to take a look at how our Safety Professionals are certified by the PIR players - check the records of any of the partner Associations and see how many students if any ever fail a course - its scary who is out there in the position to call the shots for Safety and I can assure you more times than not it is someone not equipped to or experienced to make that call. To me the NCSO means little to nothing!!

    Heck I have had interaction with young OHS Officers that are no better!

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  2. Thanks anonymous. It would be interesting to do that research. My understanding is that the Partners in Injury Reduction (PIR) program (which I am NOT defending) has adjusted its procedures to create an automatic review when there is a fatality.

    This was one of the responses to the 2010 Auditor General's report that revealed that some employers with long-standing OHS violations continued to be Certification of Recognition (COR) holder.

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