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Evaluating worker safety outside Canada

By Jennifer Brown
| www.cos-mag.com
Rescue workers carry the coffin of one of the hostages killed during the hostage crisis at a gas plant in Algeria in January.

Canadian companies with workers employed in potentially volatile locations abroad may want to review their occupational health and safety policies and assess potential risks following the recent hostage taking at a natural gas plant in Algeria.

The incident, which involved workers from five different countries, occurred in January when militants stormed the plant and held 685 Algerian and 107 foreign workers hostage at a gas plant in the Sahara. By the end of the incident, 55 people had been killed.

Case law suggests Canadian laws around occupational health and safety could extend to conditions overseas, says Kevin MacNeill, a partner with Heenan Blaikie LLP. In a recent blog post, MacNeill explored cases where Canadian laws have been extended to foreign territory and what companies should do to make sure their employees are safe.

“In this kind of case I think you want to have a heightened sensitivity to the gravity of the potential risks and how some of those risks are potentially more out of control than in a domestic industrial setting, particularly in areas where there is civil unrest or high crime rates,” says MacNeill. “Those are things harder to protect against than guarding a machine or making sure your workers use fall-arrest protection.”

MacNeill says there is a “general presumption against the extra-territorial application of Canadian labour and employment legislation.”

“There isn’t a lot of law here,” he says. “In general terms my impression from the cases I have looked at is that when you’re bringing Canadian employees overseas it’s the Canadian laws that could apply. When hiring the locals it’s likely the local laws that will apply.”

However, some past decisions of the Canadian Industrial Relations Board have indicated Canadian laws — specifically those that have been referred to in the Canadian Labour Code, which governs federally regulated employers — should apply beyond Canadian geography. In Seafarers’ International Union of Canada and Dome Petroleum Ltd., the CIRB used that rationale to allow a trade union access to workers on the employer’s offshore oil rigs and vessels.

While the case doesn’t directly consider the labour code’s OHS provisions, MacNeill points out it is “conceivable that these provisions could also have extra-territorial application in the right circumstances.”

In other cases, workers’ compensation legislation has been used to decide a case. In 2005, the Ontario Workplace and Insurance Appeals Tribunal upheld a worker’s entitlement to benefits for workplace injuries he sustained in the course of his job as a truck driver for a Canadian aid organization while working in Albania.

In hindsight, MacNeill says it was “foreseeable” the kind of incident that happened in Algeria could have happened. On the other hand, he says it was also unforeseeable that it would “happen at that particular location and in that particular way.”

Anticipating the level of danger to workers requires a company’s HR and law department to have heightened awareness and sensitivity to the realities that exist in certain jurisdictions.

Whether a company has a system in place to protect employees abroad often depends on the kind of work and the locations they operate in, and what their safety culture is like.

“It depends on the company,” says MacNeill. “I think a number of the larger and more sophisticated employers generally do have an operational due diligence program and they do apply that outside of Canada as well.”

And while foreign OHS laws may apply to foreign workers employed by Canadian companies, that idea is also changing as companies feel compelled to join the corporate social responsibility movement, which has been issuing calls to apply higher labour standards abroad for foreign workers.

MacNeill offers the following tips for companies with workers overseas or headed abroad:

• Do a proper risk assessment of the proposed work outside of Canada;

• Be upfront with workers about the potential risks and hazards of the assignment and avoid putting pressure on workers to accept the work;

• Develop clear policies that govern workers who are working abroad;

• Develop and maintain a company crisis management plan;

• Train workers on political, security and travel risks, local laws of importance, and emergency procedures;

• Consider specialized global travel/medical/emergency insurance and/or hiring third parties for medical and security assistance;

• Monitor international warnings and travel advisories for risk levels or hazards to workers while they are outside of Canada.

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[em]Jennifer Brown is the editor of Canadian Lawyer InHouse, a sister publication of Canadian Occupational Safety.

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