Bill 47 makes Alberta workplaces less safe

This post previously appeared on the Parkland Institute Blog.

On Nov. 5, 2020, Alberta’s United Conservative government introduced Bill 47 (Ensuring Safety and Cutting Red Tape Act, 2020). Bill 47 makes substantial changes to the Occupational Health and Safety (OHS) Act and the Workers’ Compensation Act and contains new legislation creating a payment for first responders who die from work-related causes. Overall, Bill 47 represents a significant rollback of workers’ safety protections in Alberta. This is the first of two blog posts examining Bill 47. This post focuses on changes to the OHS Act that, if passed, will come into effect Sept. 1, 2021.

Alberta’s OHS Act is intended to prevent workplace injuries. It sets out the general rights and obligations of workers and employers and the role of government. (More specific safety rules are set out in the OHS Code.) The OHS Act was significantly amended by Alberta’s former New Democratic government in 2017 to improve workers’ ability to refuse unsafe work and create mandatory joint health and safety committees (JHSCs).

Joint Health and Safety Committees

Alberta instituted mandatory Joint Health and Safety Committees for employers with more than 20 workers in 2018. Workplaces with five to 19 workers are required to have a health and safety representative. Alberta was the last province to require JHSCs.

The logic of a joint committee is twofold. First, workers’ knowledge is useful and make workplaces safer. And second, workers and employers sometimes have different priorities around safety, and joint committees give workers a meaningful voice on safety issues.

Bill 47 guts the JHSC system, leaving committees as employer-dominated shells. The specific changes include:

• Employers determine who sits on the committees, instead of workers electing or unions appointing the worker representatives. This allows employers to appoint compliant worker members.
• Rules specifying the need for co-chairs (one worker and one employer), the development of procedures by the committee, meeting quorum and schedules, duration of membership, public posting of membership, and training requirements have been removed from the act. Combined with employer control over who sits on these committees, these omissions mean employers will control the committees.
• The duties of JHSC have been reduced to receiving worker concerns, participating in the employer’s hazard assessment process, making non-binding recommendations, and reviewing inspection results. Of particular concern is the absence of any requirement for workers to participate in regular worksite inspections or the investigation of serious injuries and incidents. The right to inspect is an important duty and enshrined in most other provinces.
• The requirement for regular (i.e., quarterly) worksite inspections appears to have been eliminated from the act.

These changes are out of step with the Canadian norm. They allow employers to render JHSCs ineffective. And the absence of required inspections means workplaces will become more dangerous.

Right to Refuse and Retaliation

The right to refuse unsafe work can save workers’ lives, although it is rarely used in Alberta because workers fear employer retaliation. Nevertheless, it is one of the most important safety rights workers have. During the COVID-19 outbreak at the Cargill meatpacking plant earlier this year, workers protected themselves and others by using their right to refuse. Bill 47 narrows the circumstances in which a worker can refuse unsafe work, makes it more difficult for them to refuse and weakens their protection against reprisal.

Presently, Section 31(1) of the OHS Act says workers may refuse work “if the worker believes on reasonable grounds that there is a dangerous condition at the worksite or that the work constitutes a danger to the worker’s health or safety or to the health or safety of another worker or another person.” Bill 47 replaces “dangerous condition” and “danger” with the narrower term “undue hazard.”

Bill 47 defines undue hazard as “a hazard that poses a serious and immediate threat to the health and safety of a person.” This has two implications:

• The word serious is not defined but its inclusion narrows the kinds of dangers that can be refused. For example, presently, workers might be able to refuse work that could result in a laceration or mild burn (an injury they should not be forced to experience on the job). Such hazards would likely not be grounds for refusal under Bill 47.
• The word “immediate” is not defined but generally means “occurring without loss of time.” This means workers facing hazards that take time to result in injury (e.g., most chemical, biological, radiological, vibration, and noise hazards) may not be able to refuse unsafe work. This definition may have prevented Cargill workers from refusing work due to COVID.

Bill 47 also eliminates the presence of a worker representative during the investigation of the allegedly unsafe work. If the employer assigns another worker to do the dangerous task, the employer is no longer required to notify the other worker of the first refusal unless the first worker had complained to an OHS officer (which almost never happens). Further, the employer is not required to tell the second worker they have a right to refuse the work as unsafe. Employers are also no longer required to pay workers while they are refusing unsafe work, which will suppress workers’ willingness to refuse.

Bill 47 also reduces workers’ protections from employer retaliation for exercising their rights (such as the right to refuse). Presently, no one is allowed to take discriminatory action against a worker for exercising their rights under the OHS Act or Code. Bill 47 replaces the phrase “discriminatory action” with “disciplinary action.” The government press release explains this change as necessary in order to “avoid confusion with human rights laws.”

This rationale may (or may not) be true. What this explanation does, though, is obscures the most important effect of that change. Disciplinary action is a far narrower term than discriminatory action. For example, assigning a worker who previously refused unsafe work to permanent night shift is discriminatory but not disciplinary. This change in language dramatically expands the ways employers can legally retaliate against workers if workers exercise their health and safety rights. Essentially, Bill 47 increases the risk for workers who act to make workplaces safer.

Exemption from Safety Rules

A new provision allows an OHS director to waive requirements of the OHS Code for specific employers or industries. The new measure, called allowances, stipulates that they can do so only if the waiver does not materially affect a person’s health or safety. This qualification may prevent a serious undercutting of safety standards, but it does put at risk the principle that safety protections apply equally to all workers.

The creation of allowances raises the possibility of loosening protections for some employers, thereby reducing the overall level of protection for their workers. A provision of this nature requires us to believe that government officials will not cave to pressure from employers or employer-friendly politicians. There is no requirement that the government publish who has received what exemptions from the OHS Code.

Analysis

Labour Minister Jason Copping asserted that Bill 47 is about “improving safety for Alberta workers and making workplaces safer.” Bill 47 will achieve neither of these outcomes. Instead, it will make Alberta workers more vulnerable to injuries by reducing their ability to remedy and resist unsafe working conditions.

The changes proposed to joint committees will render useless one of the few tools workers have to pressure employers to remedy unsafe workplaces. Allowing employers to populate the committees and determine how they will operate means employers can turn them into paper tigers. Savvy employers will appoint docile representatives, hold few meetings and take little action. The elimination of a requirement for quarterly worksite OHS inspections will also mean hazards are likely to go unrecognized for longer — likely until a worker is injured.

Narrowing the definition of unsafe work means workers will be even less likely to refuse unsafe work. And, when they do, employers will have a freer hand to simply ask another worker to do the job without making it safe. Employers are also better able to punish workers for exercising their safety rights. And employers – or at least politically connected employers – will be able to get exemptions from the OHS rules.

There is no clear and compelling rationale for weakening Alberta’s health and safety laws. Indeed, Alberta already has among the highest per capita rates of reported injuries and fatalities in Canada. This poor record reflects high levels of employer non-compliance with basic OHS rules. Non-compliance reflects historically anemic enforcement and the absence of penalties. Indeed, there has been a drop in inspection activities and in penalties meted out for violations since the United Conservative Party took power. Weakening worker’s OHS rights will result in even less safe workplaces and even more dead and injured Albertans.

-- Bob Barnetson and Jason Foster

Alberta government continues rollback of worker protections

 Written by Professors Jason Foster and Bob Barnetson, Athabasca University 

This post previously appeared on the Canadian Law of Work Forum.

Last week the Alberta UCP government introduced Bill 47: Ensuring Safety and Cutting Red Tape Act. The bill makes sweeping changes to the Occupational Health and Safety Act(OHS Act) and the Workers’ Compensation Act. It also creates a new act, the Heroes’ Compensation Act, which provides a lump-sum payment to families of first responders who die as a result of their duties. Media reports have stated Bill 47 repeals many of the protections enacted by the previous NDP government, but the bill actually goes much further, rewriting many longstanding aspects of Alberta’s OHS and WCB system that will undermine worker safety in the province.

OHS Act Amendments

The Bill provides a complete re-write of the OHS Act, making a wide range of changes. The most significant include gutting the rules related to joint health and safety committees, weakening workers’ right to refuse unsafe work, and permitting variances from requirements under the OHS Code.

In 2018, the NDP made joint health and safety committees (JHSCs) mandatory for employers with more than 20 workers, making Alberta the last province to do so. In addition to mandating JHSCs, they established a series of requirements for their establishment and operation to ensure their effectiveness, including member training, worker and employer co-chairs, worker selection of worker representatives, and the right to participate in inspections and incident investigations. 

Bill 47 maintains mandatory committees but eliminates most of the rules governing them. The new Act eliminates co-chairs and permits the employer to appoint worker representatives (after “consultation” with any certified union). The bill strips committees of their right to participate in inspections and investigations, reducing them to receiving worker complaints and issuing non-binding recommendations. It also eliminates the requirement that the JHSC inspect the worksite quarterly, a key tool for identifying hazards, leaving no meaningful requirement that the workplace be inspected regularly.

For the UCP, rules regulating how JHSCs do their job is “red tape” to be reduced. For workers, effective JHSCs are one of the few mechanisms they have to exercise their safety rights and make sure their workplaces are safe. By transforming JHSCs to employer-dominated shells, they have stripped one of three worker safety rights, the right to participate, of any real meaning.

The bill also weakens the second worker safety right, the right to refuse, by restricting its definition and weakening protection against reprisal. The current OHS Act states workers have a right to refuse work “if the worker believes on reasonable grounds that there is a dangerous condition at the worksite or that the work constitutes a danger to the worker’s health or safety or to the health or safety of another worker or another person” (s. 31(1)). Bill 47 replaces “dangerous condition” and “danger” with the narrower term “undue hazard”, which it defines as “a hazard that poses a serious and immediate threat to the health and safety of a person” (s.17(1)).

The change appears to do two things: narrow the range of dangers which trigger the right to refuse by adding “serious”; and eliminating the ability to refuse over dangers that are not “immediate” such as chemical exposure or noise hazards. For example, workers at the High River Cargill plant evoked their right to refuse during the COVID-19 outbreak in their plant in May to protect themselves from the virus. Under the new definition, those refusals would likely be illegal. The bill also bans worker representation at the refusal investigation and strips other workers of their right to be informed of the refusal. The bill makes the right to refuse, already a weak right in practice, even harder to exercise.

The third change has the potential to be insidious. Bill 47 introduces a new provision, called “allowances” which allow an OHS Director to permit an employer or group of employers to “vary” from any provision in the OHS Code, the detailed OHS rules. Waiving provisions will be allowed only if the Director “is satisfied that no person’s health or safety is materially affected by the allowance” (s. 21(1)). No definition is provided of “materially affected”, leaving the door open to undermining of core safety standards. The provision incentivizes employers to find ways to avoid complying with the Code by asking for these variances.

WCB Act Changes

Bill 47 also makes a number of changes to the WCB Act which undermine injured workers’ rights to fair compensation and will reduce employer costs through lower WCB. The first wave of changes will negatively impact the compensation injured workers receive. The bill re-instates an insured earnings cap, which limits the amount of wages eligible for compensation. It also eliminates automatic cost of living increases, returning to Board discretion, meaning rates could erode over time. The bill removes employer obligation to pay for health benefits for injured workers, potentially cutting them off from important health services. Finally, it gives the WCB Board the power to unilaterally cut the benefit level provided injured workers. Currently, the WCB Act stipulates that an injured worker shall receive 90% of net wage losses in compensation. Bill 47 removes the reference to 90% and leaves it to the Board to determine a fair compensation level. This could result in a decision to reduce benefit levels for all injured workers going forward.

The second group of changes undermine workers’ ability to navigate the complex WCB system and receive fair decisions. The most common worker complaint about WCB is its complexity and the difficulty in accessing appeals processes and assistance in those processes. The NDP government established two offices independent of the WCB, Fair Practices Office and Medical Panels Office, to help workers navigate the system. Bill 47 closes both offices and creates a new review office set up under the oversight of the WCB.

The third set of changes puts injured workers long term income security at risk. The bill removes an employer’s obligation to re-hire an injured worker, giving employers the opportunity to use a workplace injury as an excuse to fire an unwanted worker. The Bill also establishes new penalties for workers who fail to cooperate with vocational rehabilitation demands, permitting the WCB to reduce or cut off their compensation payments.

Bill 47’s name is only half right. Most of the bill is about cutting so-called red tape and reducing WCB premiums for employers, but it decidedly does so at the expense of workers’ safety. Workplaces in Alberta will be less safe when this bill is implemented and injured workers will receive less compensation for their injuries. Compounded with other recent anti-worker bills introduced by the UCP government, the erosion of workplace standards and worker rights in Alberta has reached unprecedented levels.

-- Jason Foster and Bob Barnetson

Why are public-sector employers “good employers”?

Source: D'Arcy Norman, Wikipedia Commons

Last week, I ran across an OHS order directed at the University of Calgary. Apparently, the U of C was found to have violated of s.391 of the OHS Code.

That section is about training workers and harassment and violence:

391. An employer must ensure that workers are trained in

(a) The recognition of violence and harassment.
(b) The policies, procedures and workplace arrangements that the employer has developed and implemented to eliminate or control the hazards of violence and harassment.
(c) The appropriate response to violence and harassment, including procedures for obtaining assistance, and the procedures for reporting, investigating, and documenting incidents of violence and harassment.

These provisions came into effect in June of 2018. The order was issued in September of 2020. I wasn’t able to find out much in terms of details, but we can make some guesses:

1. Likely the U of C hasn’t provided adequate OHS training on these hazards.
2. This order likely stems from a complaint or an injury (since random inspections are basically non-existent in Alberta). 
3. I’d also guess that this violation is likely long-standing (since falling out of compliance once an employer has set up a training system is unlikely).

This is not an issue unique to the U of C. For example, less half of the teachers in recent study by the Alberta Teachers Association indicated they had received training to managing bullying and violence.

My own university failed to provide OHS training, received an order, and then stalled responding for months. The training we were eventually provided was terrible. And a revised training developed by the joint occupational health and training committee has been waiting implementation for more than 6 months.

Widespread violations of health and safety rules by public-sector employers is often hard for people to reconcile. Aren’t public-sector employers “good employers”? I think this dissonance stems from confusing good jobs and good employers.

Public sector workers are more likely than private-sector workers to have good jobs, with decent wages, job security, benefits, pensions. (This isn’t a universal experience in the public sector, but there a definite pattern.)

These good working conditions don’t reflect employer benevolence. Rather, they reflect that unionization is high (~67%) in the public sector and union contracts limit how bad employers can make public-sector jobs.

While most public-sector collective agreements contain some language on OHS, the bulk of the rules flow from the OHS Act and Code (which is effectively unenforced in Alberta). So health and safety is an area where public-sector employers can let their true managerial colours show.

And this generally shows up by ignoring their obligations (because most violations don’t result in a serious injury that would attract government sanction). In this way, public-sector employers save cost (however marginal) on safety. Training is particularly easy to ignore unless, in my experience, there is a joint health and safety committee populated by knowledgeable actors who will push and prod the employer and maybe complain.

-- Bob Barnetson

One-Day Wildcat Strike by Alberta Health Workers Likely Just the Beginning

This blog previously appeared on the Canadian Law of Work Forum.

Albertans woke up on Monday October 26 to news that support workers at one of the province’s busiest hospitals were refusing to start their shifts and were striking outside the main doors. Soon word spread that almost 1000 workers at up to 45 health facilities in 33 Alberta municipalities had walked out. The workers were members of the Alberta Union of Provincial Employees (AUPE) and perform a range of support services such as laundry, food preparation, janitorial services and other important functions that keep facilities operating.

Energy built through the day, with labour leaders and members of other unions walking the picket line in solidarity. The workers’ collective agreement has expired and negotiations are ongoing, but the union was not yet in a legal strike position. Late Monday night, the Alberta Labour Relations Board (ALRB) declared the strike illegal and ordered striking workers back to work. Here is the decision.

In Alberta, illegal strikes face significant penalties, including fines against the union of $1,000 per day, fines against individual workers, suspension of union dues for up to six months, and possible contempt of court charges. Early Tuesday morning, AUPE announced that all workers had returned to work.

Despite its short duration, this wildcat strike is likely just the beginning of worker action in response to provincial government cuts to health care, so there is value in looking more closely at the strike.

The strike took place as a direct response to UCP government plans to privatize health care support services. On October 13, Health Minister Tyler Shandro announced a plan to privatize laundry, food service, laboratory, and other services, which will result in lay-offs to up to 11,000 health care workers. Just three days before the strike, the first phase of the plan was announced, leading to the lay-off of 425 AUPE members. It should also be noted that these announced lay-offs are taking place as Alberta’s COVID cases are rapidly climbing and COVID-related hospitalizations on the rise.

It is likely this strike is not the last direct action we see from Alberta’s public sector workers. The UCP government is engaging in a series of high-profile conflicts with its workers. A burning war with Alberta’s doctors remains unresolved. The announced health privatization plan is regarded by many as the first step towards a more aggressive move toward American-style health care. Dramatic funding cuts to education, social services, and post-secondary institutions are leading to thousands of layoffs in those sectors. And the government has strongly hinted at demands for wage rollbacks for all public sector workers in current bargaining rounds. On many fronts, public sector workers have reason to be concerned, angry and prepared to take action.

The other illuminating aspect of the strike is the government’s aggressive response to the strikers. Finance Minister Travis Toews issued a statement criticizing the action: “Going forward we expect that all unions respect the bargaining process and stop putting Albertans’ safety at risk. … We will not tolerate illegal strike activity”. He also said the workers and the union would “be held accountable” for the strike.

Asserting that unions should “respect the bargaining process” is difficult to reconcile with the UCP government repeatedly interfering with public-sector bargaining and bargaining rights in the past 18 months. They unilaterally postponed arbitration deadlines that were enshrined in collective agreements. They gave themselves the right to impose binding and secret bargaining mandates on public-sector agencies. They tore up a legally negotiated deal with Alberta’s doctors, imposing a legislated contract. They have passed bills constraining workers’ rights to picket. Their recently passed Bill 32 imposes a series of restrictions on union activity, including limits on the right to strike. Apparently, the government expects unions to abide by the law, no matter how unfair, while at the same time affords itself the right to change rules that are inconvenient for the government.

The wildcat strike and the government’s response to it remind us of the conflict inherent in public sector labour relations. The government is both the employer and the body that sets the rules, establishing a dynamic stacked against public sector workers. It is no surprise that public sector workers see through this conflict of interest and take matters into their own hands when they believe their jobs are at risk.

-- Jason Foster and Bob Barnetson