The role and function of the prime contractor is becoming better understood as the industry gains greater comfort with the concept.
The first question that is likely asked by Occupational Health and Safety (OHS) officers performing a site inspection or investigating a workplace safety incident will be “who is the prime contractor.”
They’re interested because failing to understand who is the prime contractor and the obligations that follow could jeopardize the safety of workers on a site and cost an organization tens of thousands of dollars in fines and penalties under the Occupational Health and Safety Act.
What is a prime contractor?
Many employers have effective OHS programs in place around their own operations and strict policies to help their workers stay safe. Those programs and policies may work well in the shop, but cracks can quickly develop on a shared worksite. Problems arise because each employer, though it knows its own job very well, often sees only a small piece of the overall project.
To address this, the Alberta legislature created the role of prime contractor. The prime contractor is responsible for looking at the big picture and ensuring that all the different parts of the project interact safely. This role includes:
• Co-ordinating the OHS efforts of all the employers on the worksite;
• Ensuring that employers communicate effectively in relation to health and safety;
• Ensuring that everyone on the worksite has access to first aid services and supplies;
• Ensuring the safety of shared facilities, which may include scaffolding, guardrails, and temporary stairs;
• Providing centralized management of controlled products;
• Investigating serious workplace injuries; and
• Intervening to protect workers where imminent danger is detected.
The presence of a prime contractor on a worksite does not affect the existing OHS duties of anyone else on the worksite. Anyone on the worksite who is not compliant with OHS legislation can still be fined or prosecuted — the only difference is that the prime contractor may be prosecuted as well.
OHS officers have recently been granted the power to issue administrative penalties of up to $10,000 per day for OHS violations. These penalties may be issued against employers, workers, contractors, suppliers and prime contractors.
When is a prime contractor required?
There must be a prime contractor at any worksite where there are two or more employers involved in work.
For instance, a prime contractor is required:
• Where multiple employers are working simultaneously;
• On a worksite where a contractor is directing one or more self-employed workers (the contractor counts as an employer, as does each self-employed worker); or
• On a joint venture project where workers belonging to multiple companies are operating under common supervision.
The law was recently changed to require a prime contractor where there are two or more employers working on a project, but only one is working at any given time.
This change is important because it could trap owners who think that they do not need a prime contractor as long as only one employer is onsite at a time.
Who is a prime contractor?
By default, the owner of a worksite is the prime contractor. The owner can and often will transfer the prime contractor designation to the builder. This agreement should be in writing.
Owners who transfer the prime contractor responsibility must ensure that their chosen prime contractor is capable of doing the job — and be able to demonstrate their diligence. An owner who picks an incompetent prime contractor may find itself facing claims in the event of a health and safety incident.
The fact that the owner is the default prime contractor can put the owner at risk. If an owner does not specify a prime contractor when one is required, then the owner will bear the prime contractor’s responsibilities and risk liability. Also, if a prime contractor agreement terminates or is invalid, or if more than one prime contractor is specified on a site and it can’t be determined who the prime contractor is, then the prime contractor responsibility and liability might revert to the owner.
Given the potential for fines and OHS convictions, it pays for owners to clearly understand the concept and role of the prime contractor, and the potential benefits of an agreement to transfer this role to the builder.
How can a prime contractor reduce risk of liability?
The first step towards reducing liability is knowledge of the applicable roles and responsibilities. A trained safety professional or an experienced lawyer can help with any questions.
As a general rule, if a violation can be anticipated, then the prime contractor must do what it reasonably can to prevent it. Depending on the context, this could mean anything from holding safety meetings to direct worksite supervision. It is usually a good idea for a prime contractor to systemize OHS compliance on the worksite.
Having a robust system in place — and sticking to that system — can help ensure that nothing slips through the cracks. A safety professional can be an invaluable resource in this regard. Also, documenting actions will make it much easier to prove what has been done.
The prime contractor requirement is one of the most important features of OHS law in Alberta. An owner or employer need to understand their obligations and risk exposure — for the sake of their organization as well as the workers. In case of uncertainty, a quick consultation with a safety professional or lawyer could make a world of difference to everyone involved.
Alex Kotkas is a senior partner in the Calgary office of Fasken Martineau DuMoulin LLP. He regularly handles OHS charges and investigations, as well as construction and insurance disputes, and can be reached at 403-261-5358. Jordan Hulecki is a litigation associate in the same office and can be reached at 403-261-6161.