Posted  10 Mar, 2020 
In: Articles  |  News

Originally published March 10, 2020 on Alberta Farmer Express

By Jeff Melchior


There are more options under Farm Freedom and Safety Act but farm employers have the same basic obligations

The Farm Freedom and Safety Act doesn’t give producers freedom from making sure their employees make it home safe and sound at the end of every work day.

That’s the gist of a new campaign by AgSafe Alberta, which is trying to correct a misconception that Occupational Health and Safety (OHS) laws don’t apply to farms with five or fewer non-family employees.

“It doesn’t matter how many employees you have on the farm — it applies if you have any employees,” said Jody Wacowich, executive director of the non-profit society set up by 26 provincial farm groups.

This means farm employers must still ensure the health and safety of workers on the site “as far as is reasonably practicable.”

“There’s a lot more flexibility for farms and ranches but they still need to demonstrate the intent to train (staff), provide on-farm safety information and make sure the people who are working for them are safe,” said Wacowich.

It also means OHS officers can come onto a farm, said Chris Spasoff, an Edmonton lawyer and OHS expert.

“It’s what gives OHS officers the ability to enter onto farms and ranches, stop work, issue penalties and pursue charges against non-compliant farmers and ranchers. And it’s still in full force and effect.”

Understanding the legalese

The provincial workplace safety law for farms, which came into full effect Jan. 31, is seen by many as a farmer-friendly remedy to the NDP government’s controversial Bill 6.

However, it retains the OHS Act from the previous legislation while eliminating adherence to the OHS Code and Regulation.

Where some producers find themselves in the weeds is how these three words — act, code and regulation — fit in the context of farm safety legislation, said Spasoff.

First and foremost, farm employers must meet general safety standards under the act.

The act outlines farm workers’ basic rights, including the right to refuse dangerous work, the right to know of potential hazards and have access to basic workplace health and safety information, and the right to participate in workplace health and safety discussions. Those rules still apply to farms, said Spasoff.

“When people hear that the OHS Code will no longer apply, they in many cases jump to the conclusion that the rules no longer apply — and that’s simply not the case,” he said.

In essence, the code — which has more than 800 sections — is a “road map” to achieving the goals of the act, said Spasoff. But while the code lays out specifics, the act has what “are often referred to as the ‘general duty clauses’ or ‘general duty provisions,’” he said.

“They’re the catch-all rules, and regardless of whether or not the code is still in play, if you fail to fulfil or step offside of them you’ll find yourself in trouble.”

Avoiding costly penalties

For example, the act requires employers to ensure the health and safety of workers on the job site as far as is reasonably practicable.

But who decides what is reasonably practicable?

The courts are the ultimate authority but for the most part, it’s up to employers or OHS officers to make that call. However, if an OHS officer decides an employer has not taken sufficient action to provide a safe workplace, there is a range of enforcement actions — including stop-work orders, compliance orders, financial penalties and even prosecution (where jail time, although uncommon, is a possibility).

Administrative penalties can be very expensive — a maximum fine of up to $10,000 per day per breach. (For a first-time offender, the fine tops out at $500,000 per breach.) And insurance won’t guard against either, said Spasoff.

“The average penalty for a (workplace) fatality in this province right now is anywhere between $325,000 and $350,000 on sentence,” he said.

So how do farmers know if they’re being compliant with the act if there is no document laying out exactly what they have to do?

That’s where the OHS Code can retain its “road map” function even though farm employers are no longer legally bound to it, said Spasoff.

“It can — and should — still serve as a guideline to help producers assess what reasonable steps might look like and to develop best practices to prevent work-related injuries and death and avoid penalties and prosecution,” he said.

In essence, the new legislation gives farmers the option to rely on the code or come up with something that accomplishes the same thing.

“When you remove that road map you’re not really changing the end destination,” said Spasoff. “You’re just saying that there is more than one way for farmers and ranchers to get to that end point and more importantly that they are not going to be penalized for finding another route.

“The key thing is that they take ownership of the journey and actually arrive at that end destination of taking all reasonable steps to ensure the health and safety of their workers.”

Get your insurance in order

The Farm Freedom and Safety Act allows producers to choose their own insurers, as opposed to just being limited to Workers’ Compensation Board coverage.

But producers need to thoroughly investigate their insurance options.

“Make sure your employees are covered under your new insurance,” said Wacowich. “Your employees might not be covered under your general farm insurance.

“Not all of the insurance companies out there are even aware there has been a change in agriculture. You may have to have an additional rider or even a separate policy.”

AgSafe Alberta also recommends producers conduct a hazard assessment of their operations. The organization offers hazard-assessment tools as well as advisers who can come out to the farm and help identify risk areas and opportunities for improvement. (Go to www.agsafeab.ca for more info.)

AgSafe also recently updated its workbook and safety manual to bring them in line with the new provincial legislation and to make it more user friendly.

“We went over (the old manual) with a learning specialist and we heard it was kind of hard to read and understand,” said Wacowich. “We wanted to give it a little more clarity around some of those pieces. We changed it a little bit visually and at the reading level and tried to make it easier to work with.”

 


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