NATURE OF THE ORDER(S):
STOP WORK & COMPLIANCE
BACKGROUND:
Recently, OH&S issued a series of Orders to our client, all relating to alleged failures to ensure compliance with the confined space requirements of the OHS Code at a work site.
There was just one problem: our client had no presence, no operational control, and no authority over the work site where the alleged deficiencies were identified. While the client did maintain appropriate confined space procedures for its own operations and its own work sites, it was impossible - both practically and legally - for the client to comply with the Orders tied to a site that it did not control.
Notwithstanding that critical piece, and the client’s explanation to the issuing OH&S Officer, the Officer refused to rescind the Orders, and advised our client to pursue a formal appeal.
DISCUSSION:
Prior to engaging the formal appeal process, we reached out to a Director at OH&S to discuss the issue. Following that discussion and further review, the Orders were ultimately rescinded.
KEY TAKEAWAY:
OHS obligations are tied to control, authority, and presence. Where an employer does not control a work site, compliance orders must reflect that reality. Early legal involvement and respectful escalation an often resolve these issues without the need for prolonged and costly appeals.
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 issued by the regulator stating that it was allowing unsafe work to proceed and/or “non-compliant” with the OH&S legislation, may find itself on the outside looking in, with the work awarded to another contractor that doesn’t have that same blemish on its record.
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.