Friday, 20 December 2013

OLRB affirms "Workplace" to be defined broadly

In a recent decision, the Ontario Labour Relations Board (OLRB) has affirmed the proposition that the definition of “workplace” under the Occupational Health and Safety Act (OHSA) should be read broadly.

In Hydro One Networks Inc. v. Power Workers Union[1] the OLRB was left to grapple with a dispute regarding the jurisdiction of a Ministry of Labour (MOL) inspector to issue requirements and orders under the OHSA. In that case, certain Hydro One trucks were en route to work locations. The trucks were required to enter a Ministry of Transportation (MTO) inspection area. The inspection station was staffed by an MTO inspector, but an MOL inspector also happened to be present at the inspection site.

As a result of her dealings with the Hydro One workers and with the vehicles, the MOL inspector issued a “requirement” under s. 54(1)(c) of the OHSA requiring that Hydro One provide certain documentation relating to the vehicles. On a separate subsequent date the MOL inspector issued an “order” under s. 57(1) of the OHSA requiring that safety issues regarding the safe operation of the step system and aerial lift bucket of the trucks be addressed.
Hydro One fought the inspector’s requirements and order, arguing that because the inspector issued these directives before the trucks were at the destined work site, the inspector didn’t have jurisdiction to issue either the requirements or the order. In other words, Hydro One asserted that the inspector only had jurisdiction at the workplace where the truck and equipment were meant to be used, and didn’t have jurisdiction where the trucks were en route to the workplace. While conceding that the trucks could be defined as a “workplace” under the OHSA, Hydro One argued that the aerial lift bucket could not be considered a “workplace” when it was not being used and when the truck was being used merely for the transport of employees.

The union and the MOL disputed the employer’s proposition that the trucks had to be at the worksite in order for the MOL Inspector to have jurisdiction, asserting that there is no statutory requirement that such requirements and orders must be issued at the workplace.[2] However, given that the very breadth of the definition of “workplace” under the OHSA was at issue in this case, the Board did not find it necessary to deal with this element of the case. Rather, the Board set to the task of dealing with the concept of “workplace” under the OHSA.

“Workplace” is a defined term under s. 1(1) of the OHSA: 

“workplace” means any land, premises, location or thing at, upon, in or near which a worker works.   

The parties agreed that “workplace” is a fluid concept under the OHSA, one that may change to accommodate a variety of workplaces. A workplace may be mobile and both parties agreed that the trucks are a “workplace” under the definition in the OHSA. The employer, however, sought to advance a nuanced definition of “workplace”, contending that the vehicles are workplaces when they are being used to transport workers to and from the worksite, but only insofar as the vehicles are being used for that purpose.  The employer argued that the truck, but not the aerial bucket and its apparatus, is the “workplace.” The employer asserted that the aerial bucket and its apparatus could only be a “workplace” when in use.  And since they weren’t in use for work issues when the trucks were at the MTO inspection station, they were not “workplaces” under the jurisdiction of the MOL inspector at the time the requirements and order were issued.[3] The vehicles were workplaces but not their equipment – and therefore, the MOL inspector didn’t have jurisdiction.

The Board recognized the absurdity the employer’s position of separating the workplace into two (i.e. separating the trucks and their equipment) would lead to. It would require an MOL inspector who was aware of safety concerns with equipment on employer vehicles to essentially abstain from issuing any requirements or orders relating to this equipment until it was at the “workplace” where it was intended to be used. This is to say that the inspector would basically have to follow the vehicles with the faulty equipment to their destination before the inspector could make any requirements or orders concerning the flawed equipment. Putting a stop to this absurdity, the Board ruled that the vehicles and their equipment are one workplace:

There can be no issue of the appropriate nexus to worker safety in the instant case, the equipment in question is part of the vehicle that the employee is driving, it is the same equipment that the same employee is en route to using at the intended location[4]. 

Having regard to the foregoing and whether or not an order (request) must be issued at the workplace in the fashion advocated by the employer (a proposition I neither endorse nor reject), I am satisfied that the instant order and requests were issued at the workplace[5].

The OHSA is a public welfare statute, which the Ontario Court of Appeal has affirmed must be given a broad interpretation[6]. In refusing to delineate between a workplace vehicle being used by workers and the equipment attached to that vehicle, the Board complied with the ONCA’s judgment and rightly protected the safety of workers and upheld the importance of public welfare. The Board rejected the crux of the employer’s argument with this artful dismissal:

It is difficult to see how the spectre of inspectors, whether by stealth or in ‘hot pursuit’, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the 'proper' workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.[7]

As a result, the employer’s appeal of the jurisdiction of the MOL inspector to issue the requirements and order in relation to the vehicles and equipment was dismissed.

[1] 2013 CanLII 67867 (ON LRB) [Power Workers Union].
[2] Ibid at para 9.
[3] Ibid at paras 28-31.
[4] Ibid at para 41.
[5] Ibid at para 42.
[6] See R v Timminco Ltd (2001), 54 OR (3d) 21 (CA) at para 27.
[7] Power Workers Union, Supra 1 at para 40.

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