An Act to Protect the Health and Well-Being of Working Albertans (Bill 30) has amended the definition of “employer” in Alberta's Occupational Health and Safety Act.
Deloitte’s "Human Capital Trends 2018" survey notes that 50 per cent of all respondents reported a significant number of contractors or freelancers in their workforces. According to the survey, globally, the percentage of contingent workers is steadily rising, increasing by 36 per cent in just the last five years.
New employer definition
The amended OHS act recognizes and addresses the growing contingent workforce and requires companies to meet OHS employer obligations for certain workers even in the absence of a direct contract of employment.
With effect from June 1, the new definition of employer under the OHS act states: An “employer” means a person who employs or engages one or more workers, including a person who employs or engages workers from a temporary staffing agency, a person designated by an employer as the employer's representative or a director or officer of a corporation or person employed by the employer who oversees the occupational health and safety of the workers employed by the corporation or employer.
The amended OHS act defines “temporary staffing agency” as a company that retains workers and deploys or facilitates the placement of those workers with other employers.
Previously, the OHS act defined employer as a person who is self-employed in an occupation, a person who employs one or more workers, a person designated by an employer as the employer's representative or a director or officer of a corporation who oversees the occupational health and safety of the workers employed by the corporation.
Who is affected?
The definition of temporary staffing agency is broadly drafted; it includes not only traditional staffing agencies and labour providers but also captures those companies that are not in the labour provision business but that, from time to time, provide workers for another employer and do not manage and direct their work themselves. These workers essentially become embedded in the receiving employer’s organization and day-to-day supervision and oversight is provided by the receiving employer.
This provision of the OHS act aims to ensure that every worker has an “employer” at the worksite. Among numerous other obligations, employers are obligated to ensure:
· the health and safety and welfare of workers engaged in the work of that employer, those workers not engaged in the work of that employer but present at the worksite at which that work is being carried out and other persons at or in the vicinity of the worksite who may be affected by hazards originating from the worksite;
· that the employer's workers are aware of their rights and duties under the OHS act, the regulations and the OHS code and of any health and safety issues arising from the work being conducted at the worksite;
· that none of the employer's workers are subjected to or participate in harassment or violence at the worksite; and
· that the employer's workers are supervised by a person who is competent and is familiar with the OHS act, the regulations and the OHS code that apply to the work performed at the worksite.
Dual obligations
A receiving employer should not simply rely on paper qualifications or the assigning company’s description or assurance of competence for the particular worker. Arguably, the receiving employer has a duty to satisfy itself of the worker's competence to perform the work.
The assigning company, whether a formal staffing agency or not, must satisfy itself that the worker is suitable to perform the task for which the worker is to be assigned, is equipped with any necessary personal protective equipment prior to deployment to the other employer or will be so equipped prior to commencing work activities with the receiving employer and ensure that the other employer is capable of ensuring the health and safety of the worker.
Therefore, the receiving employer can no longer simply request workers by trade description and send them to work without further inquiry.
Similarly, the assigning employer or agency cannot simply send a worker to another employer and assume that all health and safety requirements will be met.
Both assigning companies and receiving employers should look carefully at their contract language and procedures for assignment and onboarding to ensure that their respective duties under the OHS act are met.
As a matter of practice, many receiving employers adopt a "hands-off" approach to their contingent workers, mindful of co-employment concerns. Going forward, while the OHS act cannot create a direct contract of employment, your contingent workers are indistinguishable from members of your permanent workforce — at least in relation to their health and safety and welfare at the worksite.
Susan Greeves is senior corporate counsel at Syncrude Canada Ltd., the operator of the Syncrude Project, an oilsands joint venture whose facilities include an integrated mining and upgrading operation, which are wholly located north of Fort McMurray, Alta.
