The farm safety legislation that sparked a political firestorm in 2015 may be gone — but not entirely.
“They say Bill 6 has been repealed, but here’s the thing: It wasn’t a clean break,” said Christopher Spasoff of F2 Legal Counsel, who defends those facing occupational health and safety (OHS) charges.
“It wasn’t a full repeal. And that’s caused a lot of confusion for a lot of different people.”
The farm workplace legislation passed by the former NDP government was meant to bring agriculture in line with other sectors covered under the Occupational Health and Safety Act, which had previously exempted farming and ranching operations from its requirements.
The move sparked widespread backlash and protests among producers, but some of that anger may have been misdirected, Spasoff said during an AgSafe Alberta webinar in mid-January.
“A lot of people will no doubt want to point a finger and say everything was fine before the politicians got involved, but I’m going to level with you — things weren’t fine,” said Spasoff, a former Crown attorney specializing in OHS prosecutions.
“They were far from it, in fact.”
Even before the NDP were elected, the provincial government had been looking at changes to OHS legislation to address a serious gap in how it was being applied to some farming and ranching operations, he said. While primary producers were exempt from the act, other types of farm businesses — like ones with waged employees or large-scale processing facilities — were never intended to be included in that exemption.
“In very simple terms, it was there to protect the quote-unquote family farm,” said Spasoff. “Right from the very beginning, there was always this notion that, although there was going to be an exemption that applied to farming and ranching, it was never going to apply full bore to absolutely everything and anything.
“That exemption was never intended to operate as a carte blanche or an overarching exemption for any and all farming and ranching operations.”
But Bill 6 went too far in the other direction, he said, by including family farms in early drafts of the legislation. That was quickly removed in amendments following a widespread outcry, but the damage had already been done.
Anything but simple
Bill 6 was repealed and replaced with the Farm Freedom and Safety Act late in 2019. Although different, the new legislation “still requires compliance with the ‘basic safety standards’ that are set out in OHS legislation,” said Spasoff.
Specifically it means farms and ranches with at least one waged, non-family worker have to meet those basic safety standards of the OHS Act (although they are exempt from the OHS Regulation and OHS Code).
“The reality is that farmers and ranchers (who aren’t exempt) are still subject to the OHS Act,” he said, adding the term ‘basic’ is itself misleading.
“This act is long. It’s 102 sections long. That’s a lot. To talk about that being ‘basic safety standards’ is a real simplification of what’s going on there.”
Generally, the act obligates non-exempt farmers to take “all reasonable steps” and “all necessary precautions” to protect the health and safety of their workers.
“The act is set up to try and prevent any number of things from negatively impacting the physical, psychological, and social well-being of workers,” he said. “Calling it a simple safety standard is really misleading.”
And exemption from the OHS Regulation and OHS Code doesn’t mean they don’t matter, added Spasoff.
He likened the act to setting out the destination — that is, the health and safety of workers — while the regulation and code help determine the right course to get there.
“By saying the regulation and the code aren’t applicable, you’re just turning off the satellite navigation,” he said. “It doesn’t mean you’re changing the end destination. You’re just saying there’s more than one way for farmers and ranchers to get to that end point safely and, more importantly, that they’re not going to be penalized for finding another route.”
But if there’s an accident, OHS officers will consider whether ‘all reasonable steps’ and ‘necessary precautions’ have been taken, and if they haven’t, the producer could be charged with failing to comply with basic safety standards, said Spasoff.
“The question when things go wrong isn’t what you did wrong insomuch as it is what you did right. That’s what you need to demonstrate,” he said. “Saying that you’ve done nothing wrong gets you nowhere. You need to show what you did right and the steps that you took leading up to that incident.”
Missing a step here or there might not seem that important but if there’s an accident, those missed steps “stick out like a hole in the wall.”
“It creates a gap in what would otherwise be a good story,” he said. “And quite often, that gap is the difference between a finding of innocence and a hefty fine.”
Doing your due diligence is also important on a personal level if there’s an accident.
“When that day comes, you want to be able to get up that morning, look at yourself in the mirror, and leave the house feeling confident that you can truly say that you did everything reasonably practicable to keep that incident from occurring,” said Spasoff.
“If there are blank pages in your story where you didn’t do something you were supposed to do, that’s a pretty good sign there was more work to be done and that you need to get on top of that stuff now.”