By Bob Barnetson, Susan Cake, and Jason Foster, Athabasca University, and Jared Matsunaga Turnbull, Alberta Workers’ Health Centre
For the second time in three years, Alberta has significantly altered its injury prevention laws. On December 1, 2021, amendments to the Occupational Health and Safety Act were proclaimed. Consequential changes to the OHS Code (which contains most of the safety rules) also came into effect. These changes will reduce the effectiveness of joint health and safety committees and weaken workers’ right to refuse.
Canadian injury-prevention laws are premised on workplace safety being the shared responsibility of employers and workers. The resulting internal responsibility system (IRS) is given its fullest expression in joint workplace health and safety committees (JHSCs) that make recommendations about controlling workplace hazards. Should employers fail to control hazards, workers are given the right to refuse unsafe work without fear of employer retaliation. The state serves mainly as a backstop to the IRS, investigating complaints and incidents and enforcing the law when employers fail to comply. JHSCs have many shortcomings in terms of protecting workers’ safety, but they remain a key anchor in Canada’s OHS system.
In 2018, Alberta’s then New Democratic government made the first major amendments to the OHS Act since 1976. The changes included introducing JHSCs (and, for smaller workplaces, safety representatives) and strengthening the right to refuse. These changes were part of a broader effort to align Alberta’s labour and employment laws with Canadian norms. Changes to the OHS Act were seen as particularly important by worker advocates because of Alberta’ low levels of employer compliance with even basic OHS obligations, high rate of workplace injury, and ineffective government enforcement.
Changes to Joint Committees
The new changes are sweeping. They narrow the role of joint committees as well as eliminate the need for regular workplace inspections. Taken as a whole, they will almost certainly reduce the ability of worker representatives to ensure workplaces are safe.
Prior to December 1, Section 19 of the OHS Act charged JHSCs with 10 duties, including investigating worker concerns and complaints, identifying hazards (including quarterly inspections), developing measures to protect workers and assessing their effectiveness, making hazard control recommendations to the employer, and participating in investigations of serious injuries and incidents.
Section 13(6) of the amended Act reduces these duties to only receiving worker concerns, participating in the employer’s hazard assessment process, making non-binding recommendations, and reviewing inspection results (if any, since regular inspections are no longer required). Employers no longer need to refer complaints to the committee or respond to committee recommendations within 30 days (old Act, s.21(1)), and worker reps will participate in investigations and inspections at the discretion of the employer.
Changes made by Jason Kenney’s UCP government also allow employers to decide how many committees an employer will have and the number of members on the committee (Code, s.196.1) These changes also eliminate the requirements to meet quarterly (Code, s.197), post the names and contact information of committee members (Code s.199), and post JHSC meeting minutes (Code, s.197). These issues are all left to the discretion of the committee. Since committees have equal representation by employer and worker representatives, employers will be able block any decisions or practices they find objectionable.
Co-chairs are no longer granted power to convene special meetings of the committee (e.g., to deal with sudden issues, such as pandemic safety issues). The new rules allow business to be conducted without quorum (previously legislatively prohibited). While rudimentary training about the operation of JHSCs has been expanded to all committee members (Code, s. 201), the requirement to grant workers up to 16 hours of annual paid training has been eliminated and thus further paid training is up to the employer’s discretion. Government certification of training providers have also been eliminated.
The changes also eliminated employer duties to (a) consult and cooperate with JHSC to develop policies, procedures, and codes of practice, (b) provide JHSC members reasonable opportunity to inform members of OHS issues, (c) allow JHSC members access to records, policies, plans, procedures, codes of practice, reports and technical specification, and (d) distribute any correspondence or info directed at the JHSC as soon as possible after receipt by the employer. Presumably, the employer can decide if it wishes to do these things. If workers refuse to participate in such committees, the employer may now appoint worker representatives (Code, s. 196.1(6)).
These changes expand employer discretion about how JHSCs will operate and what they will do. In theory, JHSCs could continue to operate as they have. But important aspects of this work now occur at the pleasure of the employer. These changes allow employers with little interest in worker input about safety (or annoyed by the behaviour of worker representatives) to quietly hollow-out JHSCs. Taken together, these changes reduce the ability of worker representatives to act in the ways that research tells us makes them effective committee members.
Changes to Right to Refuse
The right to refuse unsafe work without fear of retaliation is a key protection in Canadian OHS legislation. It is one of the few ways workers can act directly to protect their own safety. Despite high levels of injury, it is a right that is rarely used, in part because workers fear retaliation. Changes to the OHS Act narrow the circumstances in which a worker can refuse unsafe work, make it more difficult for workers to refuse, weaken their protections against retaliation, and (consistent with the changes to JHSCs) reduce the role of worker representatives in refusals.
The OHS Act used to say 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” (s.31(1) of old Act). As of December 1, “dangerous condition” and “danger” with the narrower term “undue hazard.” Undue hazard is defined as “a hazard that poses a serious and immediate threat to the health and safety of a person” (s.17.1 of new Act). This has two implications:
- The word serious is not defined but its inclusion narrows the kinds of dangers that can be refused. For example, previously, workers might be able to refuse work that could result in a laceration or mild burn. Such hazards are unlikely to be grounds for refusal now.
- 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 no longer be able to refuse unsafe work. The workers at Cargill in High River who refused to work due to the COVID-19 outbreak may not have been allowed to refuse under the new definition.
The changes also eliminate 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 explicitly required to pay workers while they are refusing unsafe work, which will suppress workers’ willingness to refuse even further.
The December 1 changes also reduce workers’ protections from employer retaliation for exercising their rights. Previously, no one was allowed to take discriminatory action against a worker for exercising their rights under the OHS Act or Code. The previous ban on “discriminatory action” has been replaced with a bar on “disciplinary action.” Disciplinary action is a far narrower term than discriminatory action. For example, assigning a worker who 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, thereby increasing the risk for workers who act to protect themselves.
The changes to Alberta’s OHS Act and Code allow employers to reduce the effectiveness of JHSC and work refusals as well as eliminate the requirement for basic hazard control activity (i.e., periodic inspections). By doing so they undermine two of the three rights workers possess under Canada’s OHS system (the third being right to know). The history of OHS tells us that, absent pressure from workers and/or the state, many employers will not identify and control hazards. The result of this will be an increase in injuries and deaths, mostly borne by workers.
In 2020, then-Minister of Labour and Immigration Jason Copping promised the changes to the OHS Act would make workplaces safer. Any reasonable assessment of the changes Copping spearheaded suggests they will make workplaces less safe. Similarly, in 2021 now-Minister of Labour and Immigration Tyler Shandro asserted that the changes to the Act and Code see workers retain their safety rights, including the right to participate in in health and safety matters. This ignores that the rights workers retain are much weaker and much more difficult for workers to exercise.
JHSCs and the right to refuse may seem like technical details in the OHS system. They are, however, important lynchpins for keeping workers safe. By undermining their effectiveness, the government of Alberta is putting workers’ lives at risk.
Bob Barnetson, Susan Cake, and Jason Foster, Jared Matsunaga Turnbull, “Why is Alberta Making Workplaces Less Safe? Alberta Undermines Internal Responsibility System with New Rules” Canadian Law of Work Forum (December 1 2021): https://lawofwork.ca/albertaohschanges/