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