Written by Professors Jason Foster and Bob Barnetson, Athabasca University
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 & Bob Barnetson, “Alberta Government Continues Rollback of Worker Protections” Canadian Law of Work Forum (November 10 2020): http://lawofwork.ca/?p=13063