“Double dipping”, you say? For many of us, mere mention of the phrase conjures up images of greasy fingers, half-eaten chips or veggies, a bowl full of dip, and a whole lot of disgusting.
But in our next couple of blog posts, we’re going to examine double dipping of entirely different, but equally contentious kind. The kind that involves hungry OH&S officers exercising their appetites for the issuance of stop work orders.
First though, let’s be clear on one thing. Multiple-site stop work orders aside (we’ll be chatting about them in an upcoming post), the legislation giving rise to stop work orders is relatively straightforward.
Under s. 60 of the Occupational Health and Safety Act, when an officer is of the opinion, through an inspection or investigation, that a danger to the health and safety of a worker exists in respect of that worker’s employment, the officer is to do one or more of the following:
(a) order the work or any part of it that is taking place to be stopped forthwith;
(b) order any worker or other person present to leave the work site forthwith; and/or
(c) in writing, order the prime contractor, contractor, supervisor, employer, supplier, service provider, or self-employed person to take measures specified by the officer that the officer considers necessary for the purpose of removing the source of danger or to protect any person from the danger.
Nothing contentious in that, right?
Many of you may very well have been on the receiving end of such an order in the past, taken the steps necessary to have it lifted, and continued on without so much as a second thought.
But … consider the following scenario: OH&S pays a visit to your work site, in response to an anonymous “dangerous condition” complaint. You’re the prime contractor, but are not actually on site at the time of their visit. Nevertheless, one of the employers on site agrees to take the officer through the site for the purposes of his/her inspection. During the inspection, the officer observes what he/she considers to be a danger to the health and safety of workers, in the form of a guard that has been removed from a particular piece of equipment. Notwithstanding that the perceived danger is easily remedied, the officer issues a stop work order for the work site in accordance with s. 60(a), and then explains to the employers and workers present that in order for the work to continue, they need to replace the guard. The employers and/or workers comply with the officer’s direction within minutes. The officer lifts the stop work order, and work continues on.
Again, while we might question the OH&S officer’s decision to issue a stop work order for the entire work site (instead of a stop use order, for example) when such an easy (and specific) fix was available, there’s nothing overly contentious in that, right? Having formed the belief that there was a danger to workers, the officer had the authority (and in fact duty) to stop the work forthwith under s. 60(a). In other words, no harm, no foul.
The problem, to the extent one exists, surfaces when the OH&S officer returns to his/her office, and decides to capture the interaction in writing, in the form of a “Contact Report”. In the Contact Report, the OH&S officer assigns a specific file number to the verbal stop work order that was issued at the work site, and proceeds to identify the measures that were necessary to be taken for the purposes of removing the danger to workers, and lifting the order. The Officer further notes that verbal compliance was granted at the site, and the stop work order lifted within minutes of being issued. Because it was a construction site where more than one employer was present, however, the officer issues the Contact Report and now written stop work order to the prime contractor that was identified (although not present) at the work site. In so doing, the OH&S officer is “double dipping”, and the stop work order is open to challenge.
Why is that the case?
Under s. 60(1) of the Act, the OH&S officer is given the authority to do one or more of (a)–(c). As such, there is no doubt that the Officer was entitled to “order the work or any part of it … to be stopped”. Similarly, there is no doubt that the Officer did exactly that, when he issued the verbal stop work order upon observing the danger at the work site. However, having verbally issued that order, and then verbally directed the employers and/or workers other than the prime contractor to take steps to address the danger (and ultimately lift the verbal stop work order), there was no remaining jurisdiction for the OH&S officer to thereafter issue issue a/the written stop work order to the prime contractor under s. 60(c).
Why does it matter?
When you receive a Contact Report (with a stop work order or otherwise), the interaction and file number assigned to that particular Contact Report (and stop work order) will form part of your internal record at Alberta OH&S, and may be used to justify administrative penalties and/or stop work orders in the future (i.e. see “How Penalties Are Determined” at https://www.alberta.ca/ohs-administrative-penalties.aspx, and stay tuned for our future post on multiple site stop work orders!).
Questions about a stop work order that you’ve received? Give us a call at 1-780-720-1586 (Edmonton & Northern Alberta) or 1-403-456-5835 (Calgary & Southern Alberta). We’ll help you assess whether the order is proper, or more properly subject to challenge.
If you liked the information and analysis in this blog post, don’t miss Friday Morning Muster - our free, weekly webinar series on everything OH&S!