In today’s construction industry, definitions can become very confusing. Construction contracts can refer to a company as the construction manager, the general contractor, or the project manager. Contracts are customized to the project needs; however, a construction contract needs to clearly identify who is responsible for worksite safety.
I. Key Definitions according to the Worker’s Compensation Act
Employer: Any person who has one or more persons working for them in or about an industry, through either a hiring contract or an apprenticeship contract. The contract can be written or oral, express or implied.
Worker: A worker includes any person who is in contract of service or apprenticeship written or oral, express or implied. Any learner who although not under contract of service or apprenticeship becomes subject to the hazards of industry while undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment.
Prime Contractor: WCA Part 3 Division 3: General Duties of Employers, workers and others.
1) A prime contractor means the prime contractor for a multiple-employer workplace. A multiple employer workplace means a workplace where workers of 2 or more employers are working at the same time.
A prime contractor of a multiple-employer workplace is the directing contractor, employer or other person who enters into a written agreement with the owner of that workplace to be the prime contractor for the purposes of safety responsibilities.
If there is no written agreement to assume responsibility for workplace safety, the owner of the workplace is deemed to be the prime contractor.
a) A trustee, receiver, mortagee in possession, tenant, someone who leases, licensee or occupier of any lands or premises used or to be used as a workplace.
b) a person who acts for or on behalf of an owner as an agent or delegate.
II. Important Notes from the Worker’s Compensation Act
Part 3 Division 1: Section 96: Jurisdiction of the Board
“The Board has exclusive jurisdiction to determine whether a person is a worker, a subcontractor, a contractor or employer (as per definitions above).
The prime contractor of a multiple-employer workplace must
a) ensure that the activities of employers, workers and other persons at the workplace relating to occupational health and safety are coordinated and
b) do everything that is reasonably practicable to establish and maintain a system or process that will ensure compliance with the WCA and the regulations in respect to the workplace.
Every employer of workers at a multiple-employer workplace must give to the prime contractor the name of the person the employer has designated to supervise the employer’s workers at that workplace.
Note: WSBC is a no-fault compensation insurance. Workers will always be entitled to compensation, even if not covered by WSBC premiums.
However, the board will determine whether an employer is responsible to pay the WSBC premiums for workers on the job site.
III. What does this mean for contractors and for homeowners?
1. Contracts are critical. If you are the builder, the developer, the client, the subcontractor or the worker, it must be very clear in your mind who is responsible for site safety. This can’t be a guessing game. Ultimately, it is the board’s decision if there is an incident on site. The best advice is to protect yourself by having clear contract language that identifies the roles and responsibilities for each party.
2. If you do not have a clear written contract that transfers responsibility for safety, the home owner or property owner can be deemed liable.
Example: “WorksafeBC report cites Campbell in worker’s death” March 06, 2012: Metro News
Gordon Campbell was unaware of his responsibilities when a roofer fell to his death while working on the former premier’s summer home in 2011, according to WSBC.
The Worker’s compensation Board report into the July 4 death of David Lesko outlined the circumstances that led to the roofer’s death at Campbell’s residence in Halfmoon Bay
Lesko fell through an exposed skylight opening, covered only by a sheet of polyethylene to keep dust out of the home below. He died as he landed on the tile floor inside the house.
Since none of the contractors on site were designated the “prime contractor”, the responsibility technically fell to the homeowner-in this case Campbell-under the WCA.
According to the Worker’s Compensation Board, the prime contractor is “responsible for ensuring that the activities of employers and workers at the workplace relating to health and safety are co-ordinated and is responsible for establishing a system or process to ensure compliance with health and safety requirements.”
The WSBC lead investigator found that Campbell was unaware of his responsibility. The report also found that the roof opening was not securely guarded, fall-protection equipment was not used and that the prime contractor failed to establish safe work procedures and provide adequate supervision.
3. More and more fines and penalties are being awarded to companies based on failures in their health and safety management. For example:
Worksafe Magazine: Penalties: March/April 2012
Standard Plumbing and Heating Ltd. $8,085.36
Langley, October 21, 2011
This firm put workers at risk through its repeated failure to fulfill the requirements of a prime contractor at a multiple-employer workplace. As the prime contractor, the firm was responsible for coordinating the health and safety activities of employers, workers and others at this residential construction site, and for establishing and maintaining a system to ensure compliane with health and safety requirements. Examples of its failure to do included the lack of the required first aid supplies or posted first aid procedures, the lack of a qualified safety coordinator for the site, and the absence of site drawings showing the necessary safety information. There were also piles of debris left on the site and ladders that were improperly set up. Furthermore, the prime contractor failed to provide safety orientations or meetings. The firm also allowed workers to be on site without the required safety equipment or first aid supplies.
BC Hydro and Power Authority. $75,000.00
Campbell River: October 20, 2011
This firm’s worker was working in an unsafe trench that was more than 4′ deep. The firm did not ensure that the sides of the trench were sloped or supported as required before allowing the worker to enter it. The firm also failed to provide its workers with the instruction, training, and supervision needd to ensure their safety. Further, as the prime contractor of a multiple-employer worksite, the firm failed to do everything reasonably practicable to establish and maintain an effective system for ensuring compliance with health and safety requirements.