Twenty-one years ago, the Alberta Workers Compensation Board started conducting health and safety audits. Soon after, Alberta Labour started its Partnerships in Health and Safety program, together with several industry stakeholders, in an effort to lessen the strain the high number of occupational injuries was putting on the system. Eventually, the two programs came together and created the certificate of recognition (COR) program, the first of its kind in Canada.
To receive a COR, employers must develop and implement a health and safety management system that meets established standards. As incentives, CORs are attractive to an employer because they help win contracts and qualify for reduced WCB premiums. Employers who first receive their COR initially get 10 per cent back on their WCB premiums. Subsequently, they can get between five and 20 per cent premium rebate every year by keeping and maintaining the COR. They undergo an external audit the first year, do a self-audit the second and third years, then another internal audit, and on goes the three-year cycle for as long as the company keeps the COR.
“The way you can get up to 20 per cent is if you start to outperform your industry sector or show improvement,” says Rob Feagan, director of Partnerships in Injury Reduction, Alberta Employment and Immigration. By outperforming he means reducing the frequency of injuries.
The number of employers with a COR is currently up to 8,800, accounting for roughly 47 per cent of Alberta’s payroll. Whether that number is good news or bad depends on which side of the issue you’re sitting.
COR in the spotlight
An auditor general’s report released in April 2010 studied the COR, which it called one of Alberta’s “key promotion instruments for OH&S.” But it — and some subsequent negative press — raised concerns about the program. The report found that some companies that persistently fail to comply with health and safety laws hold certificates of recognition.
“While the department has a COR employer review process to deal with such employers,” the auditor general’s report said, “the process is not used systematically and effectively.” The report recommended improvements to the COR system by obtaining assurance on work done by COR auditors, and consistently following up on recommendations made to certifying partners.
According to the Alberta Federation of Labour (AFL), the April report was evidence that the province’s way of addressing occupational health and safety is inherently flawed.
"The problem is that this government just can't bring itself to crack down on employers — even if those employers have repeatedly violated the law," said AFL president Gil McGowan in a press release.
The AFL’s main concern was that the auditor general had identified more than 100 companies that had repeatedly broken health and safety laws and had injury rates three to four times higher than the provincial average. These companies have been allowed to continue operating without penalty, and many have even received a COR. In the press release, the AFL objected to a system where companies are “handed rewards that are supposed to be reserved for companies that play by the rules.”
But what the COR is “supposed to be” seems to be a source of discrepancy. The fact that poor performers are receiving CORs was never a secret. In fact, Feagan argues, it’s kind of the whole point.
Out on a limb
The poor performers — those companies with injury rates three to four times the provincial average — tend to be concentrated in the heavy industrial and safety-sensitive sectors, including construction, and oil and gas drilling. They form a targeted list through the Employer Illness and Injury Prevention Program. The theory is that going through the process of ramping up a company’s health and safety systems to qualify for a COR will improve worker safety.
Roughly 20 COR holders on that list have had a COR for four years or more, and they get a personal visit from Feagan himself. The department followed those with a disabling injury rate of about 30 (extremely high) over a five-year period as they achieved their COR. Feagan says there was an improvement of more than 60 per cent in both the LTI claim rate and the disabling injury rate for those employers.
“To me that’s what we should look at,” he says. “[We should be asking] what does the COR do? Does it help them improve and get better and safer? From what we’ve seen, quite clearly, it does.”
The auditor general and AFL aren’t the first to question the merit of rewarding employers that fail to protect workers. People often ask Feagan why he doesn’t just take away their COR.
“That would defeat the purpose, if it’s the COR that’s helping them improve and we want them to keep improving,“ he says. In other words, he says the program is not about rewarding those who are already there, but encouraging those who are trying to make the change.
If the poor performers keep improving, Feagan adds, they will eventually get bumped off that targeted list. “Our stats show that CORs on that list are only there for about 1.7 years,” he says.
The auditor general’s report was timely, not only because Alberta’s system may have been due for some scrutiny, but because other Canadian jurisdictions have started to adopt similar programs.
British Columbia has a fully-operational partnerships program based on the Alberta model, and similar systems are in the works in Saskatchewan and Manitoba. Others, including Nova Scotia, New Brunswick, Ontario, the Yukon and Newfoundland have attended partnerships meetings as observers and have, or are developing, variations of Alberta’s COR.
Feagan readily admits Alberta still has much to learn about improving its program. “We learned from meeting with the other provinces that just because we’re the first, doesn’t mean we’re the best… There are cases where, due to all kinds of circumstances, that system may falter a bit. That’s where our quality assurance has to be strong and we have to follow up with employers.”
But he stands by the good the COR reportedly does.
“The auditor general’s report was also very complimentary about the partnerships program, which was lost in translation with the media,” Feagan says. The report does say that overall, “the Department’s preliminary analysis of the COR program shows that employers who hold valid COR achieve greater reduction in injury rates, on average, than non-COR employers” and that “COR employers tend to comply with OHS orders faster and require fewer re-inspections than non-COR holders.”
David Myrol, a partner at Edmonton-based law firm McLennan Ross LLP, sees Alberta’s COR program as a worthwhile endeavour.
“In my view it’s a great idea, a noble concept, but it may have some weaknesses,” he says. “I think there has been so much development regarding improved safety systems and performance in this province in 20 years. Since this program started we have a whole new profile of occupational health and safety, a whole new enforcement system, so in some ways, I think the COR program has lagged behind some of those developments and needs some tweaking.”
Besides questioning the system itself, Myrol suggests that the more important question is how employers are using it. He cautions that company owners and contractors shouldn’t rely on the COR alone as a bench line criteria of safety performance because, from a legal standpoint, having a COR is not enough to establish due diligence.
“It’s a good starting point but certainly not going to be enough to satisfy the reasonable care requirement,” he says. Instead, achieving a health and safety management system as required by the COR program should be one of many tools used by employers to protect the health and safety of workers.
As for the auditor general’s report, Myrol says an audit is always a welcome opportunity to improve. “The minister has little choice but to respond to it,” he says.
Minister of Employment and Immigration Thomas Lukaszuk has indeed committed to implementing several initiatives to help Albertans be more confident in their health and safety at work. These include updated compliance and enforcement procedures, an easy-to-understand template for posting safety records, posting the safety records of all Alberta companies online, revising the employer review process for companies with certificates of recognition and poor safety performance, and other initiatives the minister says should serve as “official notice for any Alberta company that doesn’t want to play by the rules.”
Myrol says that whether or not the responses will satisfy the identified deficiencies remains to be seen. In general, though, he believes his province is up to the task.
“We have unique challenges here, but we have some fantastic associations doing good work… developing solutions to the problems we’re facing,” Myrol says. “Certainly OH&S is front and centre in the minds of Albertans.”