Alberta OHS levying cash fines against employers, workers

But union, safety expert say focus should be on positive incentives, not penalties
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 10/22/2013

With the introduction of administrative penalties and tickets, Alberta Human Services now has the capacity to issue on-the-spot cash fines against employers and workers who put health and safety at risk.

The penalties can be given out to any parties falling under occupational health and safety legislation and can be up to $10,000 per violation per day.

The tickets are on-the-spot penalties for the same parties — employers, owner, suppliers, contractors and workers — ranging from $100 to $500 for infractions such as failing to wear personal protective equipment.

It’s also the first time workers are included in the financial penalties, according to Brookes Merritt, occupational health and safety spokesperson for Alberta Human Services in Edmonton.

“By adding the two new enforcement measures, we’re broadening the enforcement spectrum, so basically addressing a gap in enforcement by bringing in a middle ground approach,” he said.

“On the one hand, you had orders to comply that carried no punitive fines and, on the other hand, judicial prosecution, which is about as bad as it can get, and that can incur fines in six digits if not more.”

The administrative penalties arguably allow for a more efficient and timely alternative to formal charges, and are also a more robust mechanism than a compliance order, according to Terri Susan Zurbrigg, barrister and solicitor at law firm Neuman Thompson in Edmonton.

“Without administrative penalties, the continuum of enforcement mechanisms is polarized between compliance orders at one end and formal charges at the other.”

Both the penalties and tickets are discretionary, said Merritt.

“The goal is to encourage compliance with legislation and have health and safety remain a priority in the workplace. So the end goal isn’t to penalize people — they are a penalty, no doubt, they’re punitive — but the intent and spirit of specifically administrative penalties is to encourage compliance and hold accountable those who risk the health and safety of others.”

While it’s hard to quantify, the Yukon has had success with its tickets, according to Mark Hill, director of corporate services at the Yukon Workers’ Compensation Health and Safety Board in Whitehorse.

“The fines have had a dramatic effect on workplace behaviour, with the vast majority of workplaces now ensuring appropriate PPE is worn (not long ago, this was the exception rather than the rule).”

But Alan Quilley, president of consulting and training company Safety Results, is not a believer.

“From my perspective, there is nothing in human history that says we can fine ourselves into excellence. I think this is what I would call appearance-based safety — it looks like we’re doing something but this is going to have almost zero results in the behaviour and safety of Albertans,” he said. “This as a solution is absolutely without foundation.”

Much like speeding tickets don’t slow down drivers, OHS tickets won’t improve worker safety, said Quilley, who is based in Edmonton.

“It hasn’t worked for speeding, why would it work for hardhats?” he said. “The last thing you want to do is to give a worker who made a mistake — forgot his hard hat — and give him a reason to dislike safety. ‘Oh, safety, it’s just fines.’ That’s not going to really help.”

Workplace health and safety should be about incentives, said Quilley, by taking all the OHS officers and having them work with employers to help them better understand the importance of safety and how to deal with people who don’t comply.

“We should spend all of our time trying to convince people through positive means that their safety is really important — not for the government but for them and their families.”

If a worker is not wearing proper fall protection, for example, she should be provided with better instruction from her employer, said Gil McGowan, president of the Alberta Federation of Labour.

And if she persists in ignoring the rule, she should be disciplined, he said.

“That would provide the proper incentives, we think, rather than relying on tickets from inspectors who almost never show up on worksites anyway. It should be the job of management and onsite supervisors to make sure workers know the rules and are following them, as opposed to saying that it’s up to the individual worker.”

It’s the employers that set the safety culture, supervise and assign work, provide worker training and have a disproportionate influence on whether or not a workplace will be safe, he said.

“The government’s efforts in terms of both inspection and enforcement should focus primarily on employers. At the end of the day, there’s only so much an individual worker can do to promote workplace safety if his or her employer is not giving safety a priority and if the employer is making decisions that put people at risk.”

But the province of Alberta feels workplace health and safety is a shared responsibility between government, workers and employers, said Merritt.

“Employers who are not up to snuff in terms of their health and safety systems are as much at risk of a penalty or ticket as a worker,” he said.

“The legislation was drafted, first and foremost, to include the principle of fairness, so there is no situation in which workers would be unfairly penalized in relation to employers.”

While the legislation includes “worker” in the definition of “regulated person” against whom administrative penalties can be levied, it’s not yet known how common it will be for workers to face such penalties, said Zurbrigg.

“The legislative amendments certainly allow for this possibility but keep in mind that individual workers can also be charged under the act,” she said.

“But, in practice, this does not happen as frequently as charges against the company.”

Alberta’s administrative penalties took effect Oct. 1 while the tickets take effect Jan. 1, 2014. The staggered start is because of the need to train OHS officers in their new responsibilities, said Merritt, adding more officers have been hired in the past three years and there’s a greater focus on targeting certain regions.

Employers should be prepared, said Zurbrigg.

“Employers and prime contractors would be wise to use the introduction of administrative penalties as an opportunity to reinforce (to) everyone present at the worksite — be it their employees, the employees of others, prime contractors and contractors — the importance of complying with the OHS act, regulations and code.”

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