The law concerning the “prime contractor designation” under the Workers Compensation Act has been a hot topic recently, in spite of the fact that this law has been around since 1999. In my view, it is necessary to put this law into its proper perspective.

For the moment, let’s ignore the prime contractor provision and examine the other aspects of the Workers Compensation Act. On a typical logging block, the WCB considers there to be two owners, namely the Ministry of Forests and the licencee. (Beware B.C. Timber Sales bidders, as you will become the licencee and “owner” of a block you are awarded.) The owner of a workplace has an obligation to provide and maintain the workplace in a manner that ensures workers’ safety. As well, the owner is to identify and eliminate or control workplace hazards.

Also, in a typical logging situation, there is more than one employer. The licencee is an employer. (That’s right. The licencee wears two hats, as both owner and employer.) And, of course, the log harvesting contractor is also an employer. An employer is legally responsible to ensure the health and safety of all workers present at the employer’s workplace—workers working for that employer, and any other workers. This would include subcontractors, and would include visitors to the site. In the case of a stump-to-dump contractor, the workplace is likely to include the roads.

So, what happens if something goes wrong? What happens if there is a workplace injury, or a violation of the Occupational Health and Safety Regulations? I often have contractors ask me, “am I liable?” To answer that question, one needs to know the types of liability that may exist.

First of all, the WCB has the ability to impose fines and penalties. In deciding whether to fine a licencee, a contractor, or some other party, the WCB will ask itself questions such as: who had control? who had knowledge? was any party practicing due diligence? As a result of recommendations of the Safety Task Force, the WCB is focusing compliance efforts on the full forest operation from individual worker to tenure holder.

What other types of liability exist? Generally speaking, if a worker suffers an injury or death at a workplace, no civil liability rests with the employer. Of course, an employer’s accident record may impact upon its WCB premium rate. In the vast majority of cases, this is where the contractor’s pocketbook is most at risk.

So, what is the significance of a prime contractor designation? This becomes an issue only where two or more logging contractors are working in a particular area. In that case, somebody needs to take the lead in terms of coordinating the safety programs of the various contractors involved. One option is for the licencee to coordinate safety between the various logging contractors. Another is for the licencee to designate one of the contractors as the “prime contractor”. That prime contractor is to coordinate the safety aspects of all employers and workers on the site. Note the word “coordinate”—each individual contractor remains responsible for its own workers and its own safety program. The prime contractor is also to establish and maintain a system for ensuring compliance with the act and regulations at the workplace. As part of the coordination duty, each employer is to give the prime contractor the name of that employer’s designated onsite supervisor.

Admittedly, there are still unresolved issues about forest roads, and the extent to which a prime contractor can be put in charge of coordinating safety on those roads. The powers that be have promised to revisit that issue more fully.

In my view there is certainly an additional administrative expense associated with being a prime contractor. And, a contractor should reasonably expect to be paid for undertaking this additional task. But, in my view, there are already fairly onerous obligations put upon a logging contractor by reason of his being an employer. The additional obligation placed upon a prime contractor, to coordinate safety, is not as significant as many people fear. And, designating a logging contractor as prime contractor does not have the effect of relieving the licencee of its obligations as both owner and employer.

For those persons wishing more information on the issue, the Part 26 Guidelines for Forest Operations on the WorksafeBC website are helpful.

The coordinating of safety programs is a good idea. So is giving all involved parties some responsibility for ensuring safety on the jobsite.

John Drayton is a lawyer with Gibraltar Law Group who practices in the areas of forestry and motor transport law.