Prime Contractor Status May be Meaningless

The trend towards compelling silvicultural contractors to assume prime contractor status on forestry projects may have no meaning in actual practice according to the WSCA.

The controversial practice of assigning prime contractor status to silvicultural contractors is a meaningless exercise in most cases according to pending interpretations of British Columbia WCB Occupational Health and Safety Regulations. Likewise the misapplied designation does not relieve forest companies from responsibilities regarding worksite safety. These are the conclusions of the Western Silvicultural Contractors’ Association after meeting last month with Steve Brown acting director of WCB’s Policy and Regulation Development Bureau.

Brown referred to Section 118 of the regs pointing out that “prime contractor” status only applies to “multiple-employer workplaces.” These workplaces are defined as a “workplace where workers of 2 or more employers are working at the same time.”

Under this definition silviculture contractors are rarely involved in multiple-employer worksites, therefore the prime contractor assignment has no relevant meaning. The designation of “prime contractor” applies more appropriately to workplaces such as construction sites where numerous contractors are working simultaneously. Given their general isolation from other contractors silvicultural employers have only the normal safety obligations of any employer on a worksite. Other firms who may be in and out of the silvicultural project place, such as forest company supervisors, do not attract multiple-employer status to the site.

It has always been unclear as to why an increasing number of forest companies have engaged in requesting that silvicultural contractors accept prime contractor status as a condition of their contract. It is possible that forest companies may have believed that by having contractors designated as prime contractors the company or “owner” was relieved of some diligence or obligations regarding compliance and safety around these silvicultural operations.

However Section 119 of the regulations is quite explicit about forest company obligations in these situations. Under “General duties of owner” the regulations state:

“Every owner of a workplace must

(a) provide and maintain the owner’s land and premises that are being used as a workplace in a manner that ensures the health and safety of persons at or near the workplace

(b) give to the employer or prime contractor at the workplace the information known to the owner that is necessary to identify and eliminate or control hazards to the health and safety of persons at the workplace”

These two sections of the regulations make it quite clear that forest company “owners” cannot abdicate their worksite safety obligations by hiring a contractor and assigning “prime contractor” status as part of the contractual agreement. Nor is the assignment useful as an inducement for contractor compliance since the contractor is already bound to safety observances as the employer on the site.

These regulations have particular relevance to the confusion around DangerTree responsibilities. Numerous contractors report they have been told by company foresters and, in some cases WCB officers, that the contractor on site bears sole responsibility for making blocks with danger trees safe. This is not the case. Forest companies are liable as well for violations of workplace safety in this context.

In fact they may bear the bulk of the obligation. If it is the “owners” responsibility to ensure a safe workplace then it is not too wild an interpretation of the regs, Section 119 (a), to say the forest company must deal with removing hazards related to danger trees before silvicultural contractors arrive on the project. Even more appropriately they should ensure through their harvest planning and execution that sites are safe rather than leaving problems to be dealt with post-logging.

Section 119 (b) says that contractors must be told of any hazards on the site. At this point it is not clear whether (a) and (b) are options, but it certainly looks like the “owner” must assess the site so that they can properly inform the contractor of the workplace hazards present. In this interpretation it looks like the bulk of the wildlife tree assessment and treatment rests with the forest company. This obligation applies, if, over the winter after the viewing, the block changes due to weather events. It is still the company’s work site. This does not preclude the involvement of the silvicultural contractor in remedying the situation as part of the contract cost. However, it does make unacceptable the current expedient practice of some companies informing contractors “It’s your problem. You deal with it.”—while providing little else in remuneration, assistance or even recognition of the hazard.

In spite of all of the above contractors must of course remember they are the employers on site and they still have obligations to ensure their sites are safe even if they are not the architects of any existing hazards. WCB has reminds us that if an officer is on site and there are violations of the regulation or hazards observed then they will deal with the employer of the workers on that site independent of contract language or designations. In this context we have asked for clarification on how “owners” are specifically held to account for unsafe worksites that contractors may inherit when they begin contract activities on a project workplace.

General interpretation guidelines for contractors, foresters and field officers on this issue are expected from the Workers Compensation Board in time for next year’s viewing and negotiation season. The full regulations pertaining to this issue can be found In Division 3 — General Duties of Employers, Workers and Others, Section 118, 119, page xiv Occupational Health and Safety Regulations Book Core Requirements.

I recommend contractors operating in B.C. carry these regulations with them during this year’s viewing season.

The WSCA will be meeting later this summer with Alberta occupational safety agencies and industry associations to create practical guidelines for the danger tree issue in that province.