In many ways, the new OH&S Act that took effect June 1, 2018, made things a little more … complicated. While you can read more about the changes here, here, or even here, for today’s purposes, suffice it to say that while the health and safety “game” hasn’t really changed, there’s now a far bigger focus on the owners, coaches, managers, trainers, and suppliers, and about 5 more rules to capture the previous 1 rule that would earn you a trip to the penalty box.
But despite all the new rules and requirements (we’ve gone from 47 sections to 102 sections - not including subsections!), there’s one particular group that’s arguably getting an easier ride - despite the fact that many of the players in that group are yet to recognize it as such, and may be unnecessarily exposing themselves to legal liability as a result.
Who is that group, you ask?
Before we get into why that’s the case, let’s be clear on one thing. The definition of who is, and who is not, a “contractor”, hasn’t really changed. Under s. 1(f) of the new OH&S Act, a “contractor” still refers to a “person, partnership or group of persons who, through a contract, an agreement or ownership, directs the activities of one or more employers or self-employed persons involved in work at a work site”. Aside from the inclusion of self-employed persons (which wasn’t a recognized group or function under the previous OH&S Act), there’s nothing new in that definition.
Why are they getting an easier ride?
Under the old “general duty” clause in s. 2(5) of the previous OH&S Act, contractors were to ensure, as far as it was reasonably practicable to do so, that the employers involved in work at a work site and for whom they were directing the activities, complied with the OH&S Act, Regulations, and Code
Contrast that with the new “general duty” clause found in s. 9 of the new OH&S Act. While the section is admittedly wordier, and introduces a few new obligations (including an obligation to advise the prime contractor of the name of every employer or self-employed person with whom the contractors direct the work activities, and to adhere to the OH&S legislation and cooperate with any person exercising a duty under it), the overarching obligation that is owed to the employers and self-employed persons for whom they are directing the activities is actually more restrictive. And less onerous.
Whereas the duty once required contractors to ensure that employers complied with the OH&S Act, Regulations, and Code, it now only requires that contractors ensure, as far as it is reasonably practicable to do so, that every work site where those same employers, employer’s workers, or self employed persons perform work, and that every work process or work procedure that they perform at that work site, does not create a risk to the health and safety of any person provided that the work site, work process, or procedure is under the control of the contractor.
How is that an easier ride?
Let’s look at an example.
Suppose you’re a renovation company, and you subcontract out certain work to a third party roofing company. Pursuant to your contract, you set out everything from the nature of the work to be completed, the timeline within which it is to be completed, and the materials (i.e. shingles) that are to be used. In the course of performing the work, the roofing company fails to ensure that its workers are tied off, and a worker falls from the rooftop to the pavement below, causing serious injuries. The incident is reported to OH&S, who in turn completes an investigation and finds that not only was the worker not tied off, but the roofing company failed to train the worker in the use of fall protection systems, and did not have a fall protection plan in place.
On that specific set of facts, you, as the renovation company, are clearly a “contractor” for the purposes of the OH&S legislation. That’s because pursuant to the contract that you have with the roofing company, you’re directing the activities of an employer involved in work at the work site. Keep in mind, here, that “directing the activities” of an employer doesn’t necessarily mean having hands on-control of the physical aspect(s) of the work that is being done. “Directing the activities” of an employer is as simple as causing or requiring the work to be done, and that casts a pretty broad net over who may, in fact, be a “contractor”. That hasn’t changed.
What has changed, is your potential exposure as a “contractor” under this type of scenario. And that’s because under the new OH&S Act, you’re no longer required to ensure that the roofing company complied with the Act, Regulation, and Code. On the contrary, you’re now only required to ensure that the work site, work processes, and work procedures do not create a risk to the health and safety of workers (and others at the work site), if you have control over those things.
In other words, if you’re not the prime contractor (who would, by definition, be the party in control of the work site), and you don’t have any input into or influence over how the actual work is being conducted (i.e. in terms of the actual processes and procedures), you’re not responsible for the roofing company’s shortcomings and failures. Whereas under the previous OH&S Act you, as a “contractor”, would have been required to ensure, as far as it was reasonably practicable to do so, that the roofing company had a fall protection plan in place, had trained its workers accordingly, and was ensuring that its workers were tied off, and would be liable in the event those things were not in place or happening, no such exposure exists for you as a “contractor” under the new OH&S Act unless you were in control of that work site, or the work processes and procedures that were taking place as a part of that roofing operation (which, on our facts, you clearly weren’t).
What’s the catch?
Aside from the fact that there are a lot of new obligations outside of the “contractor” function that parties may now find themselves subject to, there really isn’t one. But here’s the thing: a lot of contractors aren’t actually taking advantage, legally speaking, of this significant change. On the contrary, a lot of contractors are still operating their contractor management systems in much the same fashion as they were before the new OH&S Act (and change) came into effect. After all, if it’s not broken, why fix it, right? While there’s a certain attractiveness to that reasoning for sure, the problem with that approach is that by attempting to ensure that the employers they are directing are compliant with the OH&S legislation on the whole, they may unwittingly be seen as (and may in fact be) exercising a degree of control over the work processes and procedures of those employers. In so doing, they open the door to potential liability in their role as a “contractor” under s. 9 of the new OH&S Act, where none may previously have existed.
Questions about what the change to the “general duty” clause means for your contractor management program? Give us a call at 1-780-720-1586 (Edmonton & Northern Alberta) or 1-403-456-5835 (Calgary & Southern Alberta), and let our experience benefit you.
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