Saturday, December 5, 2015

For the Farmers of Alberta - Bill 6

I have been watching, with great interest, the events of the last few days in Alberta as the NDP government is trying to bring Alberta's farmers under the guidelines of the province's Workplace Safety & Health Legislation.  Currently Alberta farmers are exempt from WS&H regs.  

Safety is something that matters to all of us.  Should there be regs. for ensuring workplaces, including farms, are safe? I think so.  Unfortunately, there is a lot of baggage that comes with WS&H regulations.  Current legislation does not address farm safety issues for which it was never designed.

I grew up on a farm.  Had my first motor vehicle accident on the farm.  My 3 brothers are still heavily involved in agri-business.  After leaving the farm I worked in heavy industry and construction for nearly 20 years.  After becoming a Project Manager I took on a unique challenge.  I was handed the task of establishing a safety program for an upstart steel fabricator and given the specific task of getting our COR (Certificate of Recognition) accreditation.  As I learned Safety is about much more than keeping employees safe.  It can be a business advantage, a political tool, a barrier to competition, and most significantly a multi-million dollar industry.  

In understanding the implications of Bill 6, and being under the purview of WS&H regulations you have to understand that WS&H regs are far reaching and give the government a great deal of power in how a business functions on a daily basis.  There are a few basic concepts of WS&H regulation that need to be understood.

Reverse Onus.

In criminal law we are familiar with concept of "innocent until proven guilty."  Most WS&H regulations are built in the concept of "reverse onus" Health & Safety Ontario provides a good definition in their FarmSafe Plan

“In most provinces, occupational health and safety laws are based on a reverse onus principle that assumes you are responsible for the occurrence of an incident, unless you can prove you took preventative measures and actions, yet circumstances beyond your control resulted in the incident occurring”

In practical terms, as an employer, you are “guilty until proven innocent.”  It doesn’t matter that you are operating safely, you have to be able to prove you are operating safely.  This is why it is critical to document and maintain extensive records about training, safe work procedures, safety meetings etc.

Powers of Enforcement Officers

One issue that many people are surprised by is the authority an enforcement officer has.  An enforcement officer can enter a place of employment (including private property) under the jurisdiction of the act at any “reasonable” time.  Police officers do not have this authority.  A police officer would require a warrant to enter a place of business. 
There are some good reasons for officers to have this kind of authority and for the most part officers use this authority wisely.  The problem usually arises when you get an employer who is not aware and thinks they are well within their rights to tell the officer they cannot enter a private establishment.  An honest misunderstanding that can lead to a very tenuous introduction to the enforcement process.

Feeding the Monster

Safety is important.  No one argues that.  Should farms be governed by some safety legislation? Yes.
The problem with Bill 6 is that it would fall under WS&H regulations that are supposed to apply to all workplaces.  My issue is with safety legislation in general.  Extending the legislation to incorporate farms makes a bad situation worse.
Safety regs can create a paper monster.  Document…document…document!  If you can’t prove it happened; it didn’t happen.  It is unlikely that the provincial department has the resources to go out and inspect every farm.  It would be logistically impossible.  Where a farmer is likely to see an enforcement officer is if the farm had a serious incident requiring an enforcement officer to conduct an investigation.  Keep in mind that if an employee goes to a hospital and reports their injury was sustained at work.  WCB and WS&H are notified.  At this point it is too late.  If you don’t have appropriate documentation and training records etc.  Expect to be put in the crosshairs of WS&H enforcement.  Fines are a real possibility if you don’t have the resources (Lawyer) or a well-documented safety process. 
Safety legislation is challenging to work with.  The legislation is unwieldy and subject to all kinds of interpretation and misinterpretation.  The situation is so bad that when I have tried to engage officials from WS&H about an interpretation the response I got was “what do you think?” and the officer refused to give any advice.  The point being that the dept is scared of providing any specific advice for fear of being held accountable in the event of an accident.  If the WS&H officers are reluctant to provide advice how do you think employers feel as they have to make decisions everyday about what is safe and not safe.
The process is so broken that in the event of an accident there is really nothing an employer can do to defend their actions.  After an accident occurred on one of our jobsites I had a lengthy discussion with a WS&H officer.  As a result of the accident the officer was writing up several improvement orders related to alleged violations of the Act.  I reviewed the orders and the apparent violations.  One issue was improper training.  I responded by providing a safe work procedure and a training record for that employee.  The officer responded by saying “the training is obviously not sufficient.”  The officer used the fact that the incident occurred, that the training was not sufficient, and the employer is at fault.  No consideration is given to the fact that the employee may have made an error or had a lapse in judgement.  It is the employer’s fault.
Safety legislation has no doubt made workplaces safer.  This does not mean it doesn’t need to be improved.  My biggest criticism about current safety practices is where we have forgotten that this is about making workplaces safer not how much paperwork you can generate to justify your existence.

Safety and Unions

One of the most powerful tools a union has is safety.  Ask someone who is experienced in labour relations how a union is certified in many situations safety plays a role in certification.  Here is a common scenario:
There is a serious accident in a workplace.  An astute union rep, aware of the situation, will attempt to make contact with employees within that business or many times the employees themselves may talk to a friend or relative who is in a union.  In some form contact is made.  A union rep will try to sell the employee on all the benefits of the collective bargaining process and how, with union representation, they could address safety issues at their place of employment.  After a serious accident, many employees can feel shaken and vulnerable.  The union option can be very appealing.  This is the beginning of a union drive.  There is a vigorous process for certification but once the notice of certification is issued in a workplace it is usually too late for an employer to react.  There are very stringent rules that an employer must follow during this process.  If an employer sends a notice to employees or has a staff meeting explaining the company’s position, this can be deemed employer interference and can have serious repercussions.  In Manitoba, which has the strongest pro-union legislation in the country, employer interference can result in immediate certification.  No vote. The union is in.  It is for this reason that safety can be a very compelling issue in the certification process. 
Is there a real possibility that farm labour on the typical family farm unionize?  I don’t think it is likely without significant changes to labour legislation.  Unions are driven by member dues.  I don’t see a union actively pursuing small operators.  There just isn’t enough incentive for them to expend the effort for one or two members.  If there is a way for a union to sign up large numbers of farm workers, that would be a much different scenario.  Something to keep an eye on in future labour legislation.

Employers vs Employees

It’s getting very tough to be an employer these days.  I respect anyone who takes the risk and puts their own capital on the line and starts their own business.  I’ve worked for entrepreneurs and have a great deal of respect for them. 
One of the biggest challenges any business, especially new businesses, has is attempting to be a responsible and sought after employer.  There are good employers and poor employers just like there are good employees and poor employees.  Unfortunately, legislation and especially safety legislation doesn’t make this distinction.  With the power imbalance that employer have with an employee there is a considerable amount of legislation that tries to balance the employer – employee relationship. 
Unfortunately, in many cases regulatory bodies favour employees as opposed to employers.  If an employee says they were fired for raising a safety concern and files a complaint with the Safety and Health division, without any clear documentation that states otherwise; WS&H will rule in favour of the employee and issue an order to pay compensation or reinstate the employee.  The employee does not need to provide any documentation to support their claim.
Most employers will chose not to appeal decisions like this because the cost it would take to appeal is usually cost prohibitive.  If they have to pay the former employee a nominal amount to address the issue that is many times the best business decision for the employer.  The cost to appeal a decision like this could cost the employer $10-15000 in legal fees and administration costs.  Many employers feel they don’t have much choice.
In short, a disgruntled former employee can cause a great deal of harm to an employer if they have ill intent and know how to work the system.  Employers need to really understand what they are doing when they decide to terminate the employment relationship.  When employees raise safety issues, they must take them seriously.  Not managing your human resources effectively can be very costly.

Safety on the Farm

Probably one of my biggest influences when it came to safety was probably my Dad.  After 20 years working in industry I’ve constantly drawn upon my experience learned, on the farm, before I ever entered the workforce.  Farms can be very dangerous places.  I still recall my Dad warning me about power take offs and the dangers of augers.  I recall Dad giving me heck for parking equipment the wrong way.  There was a right and a wrong way of doing everything.  The hazards on the farm can be unforgiving.  We had a neighbour who died as a result of mishandling a farm chemical.  Farm equipment is large and extremely powerful.  The farm yard can be a flurry of activity in the busy seasons fraught with many potential hazards.
What many safety professionals forget is that employers are not in the safety business.  I can hear the shrieks of horror as safety geeks would indignantly argue that point.  The bottom line is that farmers or any business need to produce and sell a product and hopefully make a profit.  Farmers have to farm.  I view safety as something that should encompass anything we do.  When you say good bye to someone you might say “drive safe.”  Safety is something that should be a component of everything we do.  Safety is not the goal its how we get there.  No one gets up in the morning and has a burning desire to “do safety.”  Unless you are a safety geek.  Safety on the farm or anywhere else is about building it into how you get work done.  That is really important when developing safety procedures, regulations, or legislation.  It’s about getting things done…safely.
Given the complexities of the farm and the fact that most farmers are not fluent in safety legislation and interpretation, there is a tremendous need to consult with farm groups and farmers themselves as to how to make farms safer.  I think it is completely reasonable to draft legislation that is unique to farms and farm families.  This could be a tremendous opportunity for the Alberta government but unfortunately they seem to have adopted the one size fits all approach.

Bottom Line

We all want farms to be safe places to live and work.  That is the issue.  Family farms involve work and how farm families live their lives.  A farm is not a stand-alone building stuck in the middle of an industrial park.  It is not a conventional place of work.  Employment and Safety legislation should address this unique work environment not attempt to shoe horn farms to fit into “one size fits all” legislation. 
I take no issue with farms falling under safety legislation.  However, there is a significant opportunity for government to engage farmers in the process.  Safety rules that apply to farms should be developed with farmers and for the benefit of farmers.  Farmers are by nature problem solvers.  If farmers do not embrace safety regulations the result will be a long standing enforcement issue.  We want farms to be safe; we want farmers and their families to be safe.  The best safety tool for someone working the farm is their mind.  The last thing we want is that mind devising ways of circumventing safety rules.  We want farmers focusing on their work.  Buy in from the farm community is key to the success of any legislation.  Unfortunately the Alberta has completely missed the boat on any goodwill they might have received from the farm community.

For the sake of safety the government has some “fence mending” to do. 

Donald Lepp, CHRP

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