Who's responsible when multiple employers are operating at a worksite?
Question: If one company's employees are performing work on the property of another business alongside employees of the other business, who is responsible for the occupational health and safety of the employees?
Answer: As an example, Alberta's provincial occupational health and safety legislation is comprised of the Occupational Health and Safety Act (OHSA), the Occupational Health and Safety Code, 2009 (the OHS Code), and the Occupational Health and Safety Regulation (the OHSR).
Pursuant to the OHSA, employers are responsible for the health and safety of workers engaged in the work of that employer, and workers not engaged in the work of that employer but present at the work site at which that work is being carried out. This means that, in general, an employer is responsible for the health and safety of any workers engaged in work on or in its work site, regardless of whether or not they are employed by that specific employer.
Issues may arise, however, with respect to who is the true employer in the circumstances. Employer is defined broadly in the OHSA as follows:
“employer” means
(i) a person who is self employed in an occupation,
(ii) a person who employs one or more workers,
(iii) a person designated by an employer as the employer’s representative, or
(iv) a director or officer of a corporation who oversees the occupational health and safety of the workers employed by the corporation.
Furthermore, persons and entities other than the employer may also have responsibilities for workers' occupational health and safety.
With respect to prime contractors, if a requirement of the OHS Code imposes a duty on an employer regarding the design, construction, erection or installation of equipment, and the equipment is installed by or on behalf of the prime contractor, the prime contractor must comply with the requirement as if it were directly imposed on the prime contractor. Also, pursuant to section 3(1) of the OHSA, if there are two or more employers working at a worksite, there must be a “prime contractor” whose responsibility it will be to ensure the legislation is complied with respect of a work site. Suppliers are required, pursuant to section 2(3) of the OHSA, to ensure tools, appliances and equipment that are supplied are in safe operating condition. Contractors, pursuant to section 2(4) of the OHSA, who direct the activities of an employer involved in work at a worksite shall ensure the employer complies with the OHSA, the OHSR and the OHS Code in respect of that work site. Finally, employees themselves have obligations pursuant to section 2(2) of the OHSA to take reasonable care of the health and safety of the worker and other workers present while the worker is working and to co-operate with the worker's employer for the purpose of protecting health and safety.
For more information see:
• Lougheed Imports Ltd. v. U.F.C.W., Local 1518, 2010 CarswellBC 3021 (B.C. Lab. Rel. Bd.).
• Groves v. Cargojet Holdings Ltd., 2011 CarswellNat 3422 (Can. Arb. Bd.).
