NATURE OF THE ORDER(S):
COMPLIANCE
BACKGROUND:
Recently, OH&S issued a series of Orders to our client.
The first Order (Order 01) was a Stop Work Order, issued under s. 39(1)(a) of the Act.
In accordance with s. 39(1)(c) of the Act, to comply (or lift) the Stop Work Order, the issuing OH&S Officer required that our client perform three consecutive tasks:
Repeat the hazard assessment for the task in question,
Based on the results of the repeated hazard assessment, ensure that all workers were adequately trained to perform the task in a healthy and safe manner; and
Ensure that the records and information relating to items 2) and 3) were made available to workers, and kept readily available at the work site.
The OH&S Officer then proceeded to break out or issue an additional three Orders (Orders 02, 03, and 04), specific to each of those requirements.
Our client disagreed with the Orders, and when their efforts to address them with the issuing OH&S Officer were not successful, they retained our office for assistance.
DISCUSSION:
The details provided by the OH&S Officer in relation to Order 01 made it clear that all of Orders 02, 03, and 04 were requirements being imposed to lift Order 01 (which was itself a questionable Order in the circumstances). Even if the additional three Orders were meant to be standalone Compliance Orders issued under s. 38, however, it was equally clear that none of them were issued in relation to instances of non-compliance, which is required for Orders under that section. If that was the intention, the best that could be said about the Orders is that they were written in respect of an anticipatory or future breach, which of course isn’t a proper use of s. 38 in any event.
Further, Orders 03 and 04 were unreasonably broad, with Order 03 also imposing requirements on the client that didn’t actually involve training (and therefore went beyond s. 3(2) which the OH&S Officer relied on), and Order 04 imposing a requirement for the client to create or revise policies or procedures (which wens beyond s. 3(4), also relied on by the OH&S Officer, which just deals with keeping information readily available and providing it to workers).
Viewed on the whole, it was our opinion that at best, the entirety of the 4 Orders were more akin to a Demand for Information, as opposed to legitimate Orders.
THE END RESULT:
Rather than jumping straight to an appeal, we reached out to OH&S to discuss our concerns with the Orders (including those that we identified above). Within a week of our involvement, we were successful in having all four Orders rescinded.
WHY IT MATTERS:
When you receive a Contact Report (with a Stop Work Order, Compliance Order, or otherwise), the interaction and file number assigned to that particular Contact Report and Order(s) will form part of your internal record at Alberta OH&S, where they may be used to justify administrative penalties and/or stronger enforcement measures in the future (i.e. see https://www.alberta.ca/ohs-administrative-penalties.aspx). Although we cannot speak to the internal policies in place at OH&S, it is clear that the total number of Stop Work Orders and Compliance Orders issued to an organization are considered relevant to the determination (i.e. see OHS2018_11, OHS2018_12, OHS2019_2).
The existence of such Orders is also posted publicly, and available online. The public impact or effect of such Orders and associated records does not end there, however, as both they and the underlying circumstances must often be disclosed to owners, contractors, and customers when bidding on or attempting to secure work, as part of the pre-qualification or RFP processes. As you might expect, an organization that discloses an Order stating that it “had no fall protection plan” (or was otherwise allowing unsafe work to proceed and/or “non-compliant” with the OH&S legislation), for example, may find itself on the outside looking in, with the work or contract awarded to another contractor that did not have that same blemish on its record.
What you may not know, however, is that OH&S is also in the practice of using those very same Contact Reports and Orders as the foundation necessary for an officer to form the opinion that there is a “danger to the health and safety” of workers at your work sites more generally, so as to justify the issuance of province-wide stop work orders and other province-wide measures. The rationale, it would appear, is that despite those underlying Orders having been complied and cleared by the issuing OH&S officers (who of course, would not do so if of the opinion there were in fact a continuing danger), if an employer (or even prime contractor, in our experience) receives some threshold number of Contact Reports and Orders over some indeterminate period of time, that in and of itself is indicative of a dangerous condition!
BUT WAIT! THERE’S MORE!
Just as James Brown brought a fresh rhythm to music, OH&S officers are now unveiling an entirely new beat in compliance enforcement, and the Orders here were issued in that vein.
In our upcoming webinar, "The Brand New Bag," part of our OH&S Professional Series, we'll take you deep into this transformation. You’ll discover how OH&S officers are strutting to a different beat, issuing unique Compliance Orders under the banner of the General Duty Clauses in the OH&S Act. Through real-world case examples, we'll not only highlight their occasional stumbles but also showcase their successful leaps, all while deciphering what this means for employers moving forward.
The OH&S Professional Series is an absolute must-attend event, and “The Brand New Bag” webinar is no exception. It's your exclusive opportunity to not just keep pace but to lead the way in navigating the ever-evolving OH&S compliance landscape. Don't miss the chance to groove with us as OH&S Compliance takes a whole new turn! Secure your spot today for "The Brand New Bag", and let's explore this dynamic OH&S Compliance revolution together.
F2 LEGAL COUNSEL: YOUR ACE IN THE HOLE.
OH&S officers aren’t always perfect. Neither are their Orders. We’ve been successful in having Orders rescinded in many cases owing to deficiencies, concerns over fairness and reasonableness, and problems with the authority, discretion, and/or jurisdiction of the issuing OH&S officer.
Contact us today at 1-780-720-1586 (Edmonton & Northern Alberta) or 1-403-456-5835 (Calgary & Southern Alberta), and let our experience benefit you.