Alberta OHS under fire

An April 2010 report by the auditor general of Alberta has determined the department responsible for occupational health and safety (OHS) in the province has plenty of room for improvement when it comes to systems to promote, monitor, enforce and report on its OHS goals and objectives.

“There are serious weaknesses in the department’s systems to deal with persistent non-compliance. The department does not have a clear decision ladder for escalating compliance action from promotion and education to enforcement,” said the report. “A small but high-risk group of employers consistently fail to comply with OHS orders, often despite numerous reinspections by the department.”

In four of seven new systems audits, management at the Department of Employment and Immigration was either not doing enough to identify non-compliance with legislation or not following through to ensure identified non-compliance was resolved, found the auditor general.

“They’re not making employers accountable, not the way they should be,” said Russ Cable, owner of Alberta Safety Consulting in Edmonton. “The bad employers know what they can get away with; they know how to play the game, just like a professional criminal.”

While the inspections, communication and followup actions were timely and consistent, that was not the case with persistent non-compliance, found the report. In looking at five months from 2007 to 2008 and the status of 3,392 OHS orders, 109 orders for 63 employers (with a combined workforce of 31,000) were still open after one year, despite numerous reinspections. And the average disabling injury rate for this group was three to four times the national average.

“In a resource-based province like Alberta, where you have employers coming into the province and leaving the province on a cyclic basis, (109 orders is) probably not too bad,” said Don Voaklander, director of the Alberta Centre for Injury Control and Research in Edmonton.

And the injury rates have been relatively constant, he said. However, the metrics changed a few years ago, from time-loss claims to disabling injury claims, “so things are a bit muddy right now and it’s really hard to determine what the changes have been.”

Some groups are pushing for the list of offending employers to be made public and this would make sense, said Voaklander, particularly so prospective employees can have an accurate picture of a potential employer.

“Nobody likes to have their name listed as not a good place to work,” he said.

One-half of the employers that persistently failed to comply with the OHS act continued to hold a valid Certificate of Recognition (COR), found the report. This allows them to continue to receive Partners in Injury Reduction financial rebates and to use the COR to bid on contracts with major companies.

“You know your system is badly broken when companies are not only allowed to break the law but they’re actually handed rewards that are supposed to be reserved for companies that play by the rules,” said Gil McGowan, president of the Alberta Federation of Labour, in a release.

“The problem is that this government just can’t bring itself to crack down on employers, even if those employers have repeatedly violated the law.”

The department should improve the issuance of CORs by obtaining assurance on work done by COR auditors and consistently following up on recommendations made to certifying partners, recommended the auditor general.

“There’s a number of employers, they just don’t take it seriously,” said Cable. “A lot of employers actually got their Certificate of Recognition only so they could bid on work and there’s no emphasis on safety for the worker.”

Despite numerous charges, the legislation is not enforced and “it just becomes a dog and pony show,” he said.

Every two years, the department reviews certifying partners to ensure COR activities are consistent with program requirements. But in five out of 14 files, there was no evidence recommendations were implemented more than one year after reports were issued, found the report. Documentation of followup activities was also not consistent and there was no system to centrally track implementation progress.

Whenever contraventions with the OHS act are identified, the department can order an employer to take corrective action, though contraventions that impose imminent danger result in a work-stop order.

The department can also recommend Alberta Justice initiate prosecutions or apply for an order of the Court of Queen’s Bench. An order is designed to take immediate, preventive legal action in cases where significant imminent danger is present. Continued non-compliance by an employer will result in contempt of court and could lead to criminal charges against individuals.

But the department does not use all the tools at its disposal to enforce compliance, such as an order from the court, found the auditor general. The department has never sought such an order from the Court of Queen’s Bench, though the auditor’s report noted the department had just started working on its first application.

While Alberta has legislation to enforce health and safety standards, there is a backlog in the courts, said Voaklander.

“The Crown prosecutors, even though there is substantial investigation, they tend not to take on the cases just because of sheer backlog. So there’s a bit of push back there from other ministries.”

And while a small number of employers are taken to court, often it’s only if the Crown prosecutor is guaranteed to win the case, said Cable.

“You’ve got to put a little pressure out there on these employers and that’s not happening. It’s not being enforced as much as it should be.”