In late September, 2006, the BC Coroners Service held an inquest into the tragic death of a faller who was killed while on the job. A Coroner’s jury sat through five days of evidence, so there was a lot of information for the media to pick and choose from as it reported on the proceedings. I will resist the urge to comment on the media’s sampling of that evidence—I have spoken with people who attended the hearing, but was not there myself. I’ll just say that my cynicism with the notion of a detached, objective media remains fully intact.
However, I am able to comment on the continued misapprehension in the media over the legal obligations of a “prime contractor”. A review of the media reports of this Coroner’s inquest would leave one with the impression that a prime contractor is solely responsible for all aspects of workplace safety. For example, on September 19, 2006, The Sun reported that the prime contractor was “part of a new WorkSafeBC policy to designate one contractor as ‘prime’ contractor, being responsible for all safety on the worksite”. On September 22, 2006, The Sun again reported that the “prime-contractor designation has been applied to the forest industry by WorksafeBC in an attempt to ensure that one contractor on multi-company worksites accepts full responsibility for supervising safety.”
First, the “policy” is not new. The current incarnation of the “prime contractor” concept came into existence in the Workers Compensation Act (the “Act”) eight years ago with the Workers Compensation (Occupational Health and Safety) Amendment Act, 1998. I suspect that the description of the Act's prime contractor policy as "new" is simply an effort to link that policy to last year's dismal safety statistics for the industry.
But, more importantly, a prime contractor is not responsible for “all safety” at a workplace; it is responsible for some aspects of safety at “multiple-employer workplaces” only (those workplaces where workers of two or more employers are working at the same time). Specifically, at a multiple-employer workplace, the prime contractor is required to “coordinate” the safety activities of employers, workers, and other persons, and to establish or maintain a “system or process” that will ensure compliance with the occupational health and safety requirements of the Act and regulations. In other words, the prime contractor serves a coordination function and establishes systems or processes designed to ensure compliance with the Act when multiple employers are operating at the same workplace.
While this is undoubtedly an important slice of the occupational health and safety pie, it’s still just one slice. Owners, directors and officers, employers, supervisors, workers, and suppliers each retain their own specific obligations and liabilities under the Act, and the designation of someone other then the owner as the prime contractor does nothing to alter these obligations and liabilities. And while the Act allows an owner to contract out of its default designation as the prime contractor, it cannot contract out the remainder of its obligations as an owner under the Act, just as an employer similarly cannot contract out its obligations as an employer under the Act. While an owner or employer may contractually engage someone else to fulfill their obligations as an owner or employer under the Act, if these obligations are not met the owner or employer, as the case may be, is still liable under the Act regardless of any contract and regardless of any prime contractor designation.
The commentary in this blog is general in nature and does not constitute legal advice. Persons requiring further information or advice should contact Jeff Waatainen at 250.758.9485 or jeff@bcforestrylaw.com.
