By Michael MacMillan
It is has been nearly seven years since Jake Wyssen became a household name in occupational health and safety circles. Wyssen, a window cleaner by trade, was hired to clean the windows of four Toronto area high-rise condominiums. Only after he was contracted did he realize that one of the buildings -- with its overhanging balconies -- was beyond his capabilities. Wyssen decided to pass the job to Joseph Coutu, an experienced, independent window cleaner. Coutu worked alone, used his own equipment, and was not supervised by Wyssen. Then tragedy struck. While working on the building, a rope supporting Coutu's chair snapped, and he fell to his death.
Wyssen was eventually prosecuted for failing to provide proper safety measures as outlined in Ontario's Occupational Health and Safety Act. The Ontario Court of Appeal ruled that when Wyssen contracted his work to Coutu, he became Coutu's employer. Thus, said the courts, by hiring an outside party, employers could not expect to avoid responsibility for monitoring their safety. Although the ruling affected only workers in Ontario, its echoes were heard across the country. Today's legal environment tends to favour the contractor, not the employer.
Electric utilities depend on contractors. In an era of downsizing and staff cutting,contractors are cheap, reliable, and increasingly plentiful sources of labour. While no records regarding the use of contractors are kept, an informal poll revealed that roughly half of an average utility's maintenance and construction work is handled by outside parties. And demand for their services is growing. Today they are hired for jobs traditionally performed by full-time staff. Outside lineman, right-of-way contractors, even meter readers are now hired for routine construction and customer service tasks. By looking outside the company, utilites are saving money. But it is also forcing them to deal with a long-standing problem. Who is ultimately responsible for monitoring contractor safety? And how can an employer be sure they are qualified to do the work they promise to deliver?
The answer it seems depends largely on where the utility is located. Occupational health and safety is a provincial matter. No national standards exist by which a utility rate its safety program. This is surprising, since a Supreme Court ruling has established the "due diligence" defence. Utilities, if they take reasonable steps to ensure safety, can successfully defend themselves against health and safety-related charges. Fed up with wading though a legal gray area, and recognizing the protection "due diligence" affords, many utilities are taking the initiative and developing their own pre-qualification programs for contract employees.
Gord Decker is the health and safety coordinator at TransAlta. Five years ago, he said, utilities dealt with two or three contracting companies. Today Decker says TransAlta receives bids from dozens of firms. Because of these numbers, plus the appearance of out-of-province players, and the toll intense competition takes on health and safety practices, it was only a matter of time before TransAlta was forced to come up with an official policy. "It's something that's always been done, but we needed to have a process," he explained. Now, before they can be considered, each contractor must be certified. They attend a briefing session, where management explains TransAlta's safety, environmental, and work policies. "It gets them familiar with us," Decker explained. Contractors are also asked to fill out a form, which helps management learn more about their safety practices. These forms are then submitted to the Health & Safety department for approval. Only then are contractors given the go-ahead to submit bids.
"But we still reserve the right to do an on-site audit of your company at any time," Decker added.
Alberta Power has implemented a similar program. With 39 offices scattered across the province, management recognized the need for a uniform safety policy as far back as 1992. And it seemed a logical step, since most contractors not being hired for demanding jobs .
"One of the things we noted in our policy is that for a lot of work there's a routine component," explained Rory Ryder. "In the area of pre-qualification we look at work on a routine basis."
Four years later, Alberta Power unveiled a pre-qualification program that outlines the responsibilities of both parties in the contractor-employer relationship. To make life easier for everyone, the utility also developed an accompanying software package, which it distributes to firms enrolled in the program. Contractors now log all relevant information, including employee qualification, at their PC terminal. This takes the leg work out of data collection for management, and encourages contractors to keep accurate records. It also saves duplication, says Ryder, as project coordinators no longer have to dif for the appropriate paperwork whenever a new crew arrives for work.
Although the program has not been around long enough for any contracting firms to be found in serious violation, Ryder says that the process does not end with the signature on the document. "Certification doesn't get you in the door," he said. On-site audits ensure that safety procedures are followed in the field. Reviews will be conducted if an incident is reported. Their right to submit bids can also be revoked if the violation is serious.
Nova Scotia Power has also adopted a pre-qualification process similar to those used in Alberta. Beginning January 1, 1998, Nova Scotia Power will contract only to certified members of the Nova Scotia Construction Safety Association. Since NS Power uses larger numbers of out-of- province contractors, they wanted to develop a system that would not leave them responsible for someone elses carelessness.
"Out-of province submissions for approval now must meet or exceed our requirements," confirmed Margaret Cassidy, spokesperson for Nova Scotia Power.
The efforts of Alberta Power and NS Power seem to be paying off. While Workmen's Compensation (WCB) officials from both provinces warn that their statistics are sketchy, contractor accidents seem to be decreasing. In Nova Scotia, McLean says reported accidents dropped 38 per cent in 1996 over the previous year. And lost time claims in the construction trades made up just five and a half per cent of total claims, down from more than nine per cent a decade earlier Alberta also experienced a smaller decline in lost time claims. Thirteen were filed with the WCB in 1992, as compared to 5 last year. Even taking into account random fluctuations, something seems to be working.
This decline is part of a general trend. Safety has become a key issue in the contractor industry. There exists now a level of cooperation between employers and contractos. As a result, Decker and Ryder, along with other managers across the country have seen their jobs become much easier in the past six years. In 1991, the Alberta government along with WCB, the Labour department, and the Alberta Construction Safety Association began addressing the problem with an overhaul of the province's Occupational Health and Safety Act. As a result, small contractors take eight hour classes, brush up on hazardous materials and equipment training, and learn more about legislation. Larger firms are also given additional supervisory training. A similar coalition of worker associations, government, and industry also gutted Nova Scotia's OHS. And McLean says this is just the beginning. He and his other Maritime counterparts are even talking about establishing an informal set of safety standards for the entire Eastern region.
Robin Kotyk, an advisor with the ACSA, says these measures were not forced on unsuspecting contractors. "Industry is the big pusher for it," he explained. "Everything is modeled after their input." Mc Lean agrees, "It's definitely industry-driven. It's not the old employer 'here it is, come and get it' attitude."
But a system that increasingly put the onus for safety on the employer leaves room for abuse. Harry Little is a contractor safety specialist who teaches courses on the topic for the Ontario-based Industrial Accident Prevention Association. Like Alberta, and Nova Scotia Ontario requires that all contractors have certification. On paper, this is a sound concept. But Little says that companies do not always look for proper documentation before accepting a bid. Cost pressures ultimately come to bear, and utilities will simply hire the cheapest bidder. What employers should be considering, says Little, is how the firm managed to get their costs so low.
He says many companies would be better off getting the work done with full-time employees. But he knows this is not realistic. During a recent class, two contractors from Alberta summed up the reality of their work.
"They told me about the three d's," Little said, "most people will hire a contractor when the work is dirty, demeaning, and dangerous."
McLean says he too remembers when a all a contractor needed was a "pickup truck and a pair of running shoes," but he says those days -- at least in Nova Scotia -- are gone.
However, health and safety officers do agree that getting their houses in order is only the first step. Eventually, they would all like to see some sort of national safety standard established. Tom Bestwick, Safety Supervisor with the City of Calgary Electric System is part of a task force reviewing the Canadian Electricity Association's safety data collection process. He is holping to resolve what he considers to be a serious flaw in the way utilities report accidents.
Suppose utility A contracts out 80 per cent of its construction and maintenance work, and utility B contracts out none. Over the course of a year, A experiences no accidents among its full-time staff, but three incidents involving contractors, two of which result in with serious injuries to the worker . During the same time period, B has one accident, involving an injured full-time worker. Under present data collection practices, utility A need not report the accidents, as it involved outside parties.Thus, at least on paper, A has a better safety record than B.
Safety data also takes into account exposure hours. But in this category, larger utilites have the advantage. Linemen and right-of-way contractors face high and prolonged level of exposure to dangerous situations. Full-time office workers, on the other hand, are rarely find themselves in hazardous conditions. Since the larger utilites employ vast numbers of office and support staff the numbers always come out in their favour.
"It's like comparing apples to oranges," Bestwick explained
What he'd like to see some consistency in accident reporting, and a standard industry definition of what a contactor is, and what costitutes and accident. In other words, he says, "making it apples to apples." Bestwick is not interested in forcing other utilities to comply. But he wants it to be clear who is doing what, and who's safety record is really exemplary.
"I think they way to do it is to promote fair reporting," he said, "it itself, that will promote consensus." He stresses,however, that these ideas are in a very prelimiary stage, and he as yet to hear feedback from everyone on the task force.
But the benefits of "due dilligence", and the success of the Alberta and Nova Scotia models, will eventually convince all utilities to take a greater interest in the safety of their contract help. McLean says the ammendments to Nova Scotia's OHS Act have been so successful, he expects that it will not be long before all provinces work in harmony.
"It's been a big shift for us, but it's been great. We're all walking to the beat of the same drummer now." ET