The Canadian Supreme Court shocked the construction industry in its City of Sudbury decision declaring owners to have responsibilities of employer of the contractor’s workers.
This decision upsets the status quo that has existed since the Ham Commission established the Internal Responsibility System (IRS) as the underpinning of the OH&S Act.
Employers, supervisors and workers were all held responsible under the IRS.
This assigned the greatest responsibility to the employer so an understanding of who the employer is and their responsibility is vital to the effective operation of the system.
The Court’s decision realigns almost 50 years of the IRS by expanding the definition of employer to include project owners.
This has raised many questions. Does the addition of the owner strengthen the system by increasing the scope of accountability, or does it create unnecessary confusion? If owners are partners in the IRS how should they respond? What policies and requirements should be put in place by both contractors and owners to meet their new responsibilities?
Impact on contractors
Construction employers as an industry are concerned with any change that creates workplace safety accountability confusion.
The IRS has been in place for almost 50 years and the responsibilities of each party under it are well understood. Long-term improvements in workplace safety suggest it has been successful, so this decision comes as a surprise to the industry.
The success of any given project requires a level of certainty in all aspects of the law which are accounted for at the time of the tender. Most constructors will price and effectively deliver contractual safety requirements while meeting the existing responsibilities under the OSHA and other legislative requirements. However, when uncertainty is added bids are qualified and costs rise. In this case the new responsibilities will add costs and complexity.
An effective safety program includes clear lines of responsibility and accountability. The Court’s decisions create ambiguity of owner and contractor both designated as the employer. It can only make delivering effective health and safety more difficult.
Impact on the owner
The primary impact of the court decision is on owners.
The common practice until now is to delegate responsibility for the site safety to the constructor. Most owners don’t focus on safety in the tendering process and contracts are clearly worded to absolve them of that responsibility.
Some public owners prequalify for safety by requiring a third-party audited OH&S Safety Management System, specifically COR or ISO 45001. In doing so they have begun to comply with the new requirements.
The Infrastructure Health and Safety Association who delivers COR in Ontario has confirmed measurable performance improvements of certified firms.
Owners who currently require certification to bid are demonstrating a high-level commitment to the health and safety of their contractor’s employees and have already taken an important step to addressing their due diligence requirements.
The cost of achieving certification is borne by the contractor who may need to hire additional expertise to successfully implement the requirements. It can easily take two years from start to certification and involves a major investment by the employer. There is no cost for an owner to adopt a policy to require the standard.
There are now more than 700 contractors who are COR certified and another 1,200 are registered in the program. The first step every owner should take is to set a policy that they will only consider hiring constructors with an accredited health and safety management system, usually COR or ISO 45001.
COR certification establishes the contractor has successfully implemented a health and safety management system to the accredited standard. It cannot however confirm the standard is followed every day.
This will require the owner to develop other processes to confirm the safety plan is being followed and that corrective action is immediately taken when required.
Some contractors have challenged the need to meet COR certification. It exceeds the requirements of the law.
Why shouldn’t the owner consider an alternative audit?
ISO 45001 audits can be conducted by non-accredited certification bodies that are not recognized by the International Accreditation Forum, but they will not meet the established National COR Standard.
Contractors with non-accredited certification are risking being excluded from bidding opportunities. The Supreme Court’s decision makes it important that owners demonstrate their contractors achieved an accredited health and safety management system that is an established standard.
Contractors and constructors who are COR certified are positioned to begin to demonstrate their compliance.
Firms who are not should make immediate plans to implement an accredited system. Owners must respond to the Supreme Court’s decision and as a first step it makes sense to prequalify their contracts for an OH&S designation to protect themselves.
David Frame is the executive director of the League of Champions. Send Industry Perspective Op-Ed comments and column ideas to editor@dailycommercialnews.com.
This decision has made legal requirements for construction health and safety more complicated. Owners must now set OH&S standards for their projects over the next few months and years.
Owners and contractors should work jointly to respond to the expanded definition of employer and set a standard set of contractual obligations. A systemic response will address the need for a common understanding responding to the Court’s decision.
Recent Comments
comments for this post are closed