The Ontario Liquor Boards Employees' Union v. The Liquor Control Board of Ontario, 2003 CanLII 52979

Grievance Settlement Board

GSB#0486/03

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN:

The Ontario Liquor Boards Employees' Union (H. Leith) Grievor

• and -

The Liquor Control Board of Ontario Employer

BEFORE: Michael V. Watters, Vice-Chair

FOR THE UNION: E. Schirru, Counsel Koskie Minsky Barristers & Solicitors

FOR THE EMPLOYER: R. Shirreff, Counsel Heenan Blaikie Barristers & Solicitors

HEARING: November 3, 2003.

DECISION

At the outset of the hearing, the parties filed the following Agreed Statement of Facts And Issues:

"The Parties

1. The Employer operates a liquor retail store located at 3 Victoria Street in North Walkerton, Ontario ("Victoria Street Store"). The Employer also operates a sister retail store to the Victoria Street retail store at 1 Industrial Road in Teesewater, Ontario ("Industrial Road Store").

2. The Employer's retail stores meet the definition of an Industrial Establishment for the purposes of the Occupational Health and Safety Act R.S.O. 1990 and its accompanying Regulation 851.

3. The Industrial Road retail store has power lifting equipment. Customer Service Representatives ("CSR") working at the Industrial Road Store may be required to operate power lifting equipment if they have completed the requisite training on the use of such equipment and are wearing safety footwear operating such equipment.

4. The Victoria Street Store does not have power lifting equipment.

5. The Grievor, Heather Leith, is a non-probationary casual CSR of the Employer and a member of the Union. Ms. Leith's designated retail store is the Victoria Street retail store and she performs her regular duties at this location.

The Parties are bound by the Collective Agreement between the Employer and the Union effective from April 1, 2003 to March 31, 2005. The Parties agree to the Collective Agreement being entered as Exhibit A.

6. As a casual CSR, Ms. Leith is entitled to be called in to work at the Industrial Road Store pursuant to Article 52.1(a) of the collective agreement. Ms. Leith has occasionally been offered and accepted work at the Industrial Road Store.

Occupational Health & Safety Issues

7. On March 13, 2003, Industrial Health and Safety Investigator Elliot placed a visit to the Victoria Street retail store in North Walkerton, Ontario. At this visit, Investigator Elliot observed the work of CSR's and issued an order (attached as exhibit B) requiring all CSR's exposed to the hazard of foot injury to wear foot protection appropriate in the circumstances. The deadline of compliance in the order was March 20, 2003.

8. This order applied to Ms. Leith, given her position as a casual CSR requires her to lift, carry or move materials, articles or things as a regular part of her duties at the Victoria Street retail store. This includes the unloading of liquor and beer stocks from delivery trucks, the re-organization of the stock room, and re-stocking of various shelf and floor displays on the retail floor.

Factors Giving Rise to the Dispute

9. On March 13, 2003, the Employer's District Manager informed all CSR's at the Victoria Street retail store, including Ms. Leith, that they would not be permitted to attend work at the Victoria Street retail store after March 20, 2003, without Canadian Standards Association ("CSA") approved safety footwear.

10. Prior to this management direction, CSR's working at the Victoria Street retail store, including Ms. Leith, were never required to wear safety footwear.

11. In light of the forgoing, Ms. Leith purchased CSA approved safety footwear on the evening of March 13, 2003. On March 14, 2003, Ms. Leith reported to work wearing the requisite safety footwear and submitted a request for reimbursement up to $125 from the Employer for said purchase. Ms. Leith's request for reimbursement was denied by the Employer.

12. Ms. Leith filed a timely grievance on March 14, 2003 (attached as Exhibit C) and has subsequently gone through all of the requisite stages of the grievance procedure.

Issue Requiring Determination

13. The Parties are seeking a determination of who is to assume the cost associated with casual CSR's now being required to wear safety footwear while on the job at the Victoria Street Store. The Employer takes the position that it is not required to reimburse Ms. Leith for the purchase of safety footwear. The Union takes the position that the Employer is required to reimburse Ms. Leith up to $125 for the purchase of safety footwear.

No other evidence was presented by the parties.

The provisions of the collective agreement relevant to the resolution of this dispute read:

ARTICLE 22

Uniforms, Attire and Special Allowances

22.3(a) Safety footwear, which is designated as CSA approved, shall be worn by:

• employees who are required to operate power lifting equipment;

• employees in Warehouses and Depots;

• all Maintenance employees;

• Printing and Mailing Department employees, where required;

• those employees in other locations deemed necessary by the Employer.

It is understood that those employees in Retail Stores, as identified above, shall be required to wear safety shoes.

(b)(i) Upon proof of purchase, the Employer shall subsidize the cost of safety footwear for those employees identified in (a) above, to a maximum of one hundred and twenty-five dollars ($125.00) once every twelve (12) month period.

ARTICLE 27

Grievance Procedure

27.10(a) The Crown Employees Grievance Settlement Board shall not be authorized to alter, modify or amend any part of this Agreement nor shall the Crown Employees Grievance Settlement Board give any decision inconsistent with the provisions of this Agreement.

ARTICLE 31

Casuals

31.1(g)(i) It is understood that casual employees in all depots, warehouses, and those stores where they are required to operate power lifting equipment as part of their regular duties, shall be reimbursed the cost of CSA approved safety footwear upon completion of their probationary period. This reimbursement shall not exceed one hundred and twenty-five dollars ($125.00) and shall be issued once every twelve (12) months thereafter.

ARTICLE 32

Safety Committee

32.1 The Employer shall continue to make every reasonable provision for the health and safety of its employees, under the terms of the Occupational Health and Safety Act, during the hours of their employment. It is agreed that the Employer and Union shall cooperate to the fullest extent possible in the prevention of accidents and in the promotion of health and safety of its employees.

ARTICLE 46

Uniforms, Attire and Special Allowances

46.2(a) Safety footwear, which is designated as CSA approved, shall be worn by:

• employees who are required to operate power lifting equipment;

• employees in Warehouses and Depots;

• all Maintenance employees;

• Printing and Mailing Department employees, where required;

• those employees in other locations deemed necessary by the Employer.

It is understood that those employees in Retail Stores, as identified above, shall be required to wear safety shoes.

(b)(i) Upon proof of purchase, the Employer shall subsidize the cost of safety footwear for those employees identified in (a) above, to a maximum of one hundred and twenty-five dollars ($125.00) once every twelve (12) month period.

Articles 22.3(a) and 22.3(b)(i) are identical in wording to articles 46.2(a) and 46.2(b)(i). The former apply to full-time employees whereas the latter apply to permanent part-time employees. The reimbursement of casual employees for the cost of safety footwear is addressed in article 31.1(g)(i).

The material provisions of the Occupational Health and Safety Act, R.S.O. 1990c, 0.1, as amended, are as follows:

Duties of employers

25.(1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;...................................................

(d) the equipment, materials and protective devices provided by the employer are used as prescribed;

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(h) take every precaution reasonable in the circumstances for the protection of a worker;

(l) provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer's possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety;

Additional duties of employers

26(1) In addition to the duties imposed by section 25, an employer shall,

(i) provide for safety-related medical examinations and tests for workers as prescribed;

Duties of workers

28(1) A worker shall,

(b) use or wear the equipment, protective devices or clothing that the worker's employer requires to be used or worn;

Lastly, the relevant sections of R.R.O. 1990, Regulation 851, enacted pursuant to the Occupational Health and Safety Act, relating to Industrial Establishments provide:

Material Handling

45. Material, articles or things,

(a) required to be lifted, carried or moved, shall be lifted, carried or moved in such a way and with such precautions and safeguards, including protective clothing, guards or other precautions as will ensure that the lifting, carrying or moving of the material, articles or things does not endanger the safety of any worker;

Protective equipment

82. A worker exposed to the hazard of foot injury shall wear foot protection appropriate in the circumstances.

Counsel for the Union submitted that the analysis in this case should start with a review of the substantive rights and obligations provided for by the Occupational Health and Safety Act. In this regard, he referenced the judgment of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, 2003 SCC 42, S.C.J. No. 42. The appeal, in that instance, raised questions about the application of human rights and other employment-related statutes in the context of a collective agreement. The majority of the Court concluded that a grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations found in such statutes as if they were part of the collective agreement. Mr. Justice Iacobucci, who delivered the majority judgment, made the following observation on this point:

"As a practical matter, this means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee's statutory rights. The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract. As a result, the substantive rights and obligations of the parties to a collective agreement cannot be determined solely by reference to the mutual intentions of the contracting parties as expressed in that agreement. Under McLeod, there are certain terms and conditions that are implicit in the agreement, irrespective of the mutual intentions of the contracting parties. More specifically, a collective agreement cannot be used to reserve the right of an employer to manage operations and direct the work force otherwise than in accordance with its employees' statutory rights, either expressly or by failing to stipulate constraints on what some arbitrators regard as management's inherent right to manage the enterprise as it sees fit. The statutory rights of employees constitute a bundle of rights to which the parties can add but from which they cannot derogate."

(pages 12-13)

Counsel for the Union further submitted that the Occupational Health and Safety Act should be accorded a broad interpretation consistent with the intent, meaning and spirit of the legislation. He cited the judgment of the Ontario Court of Appeal in R. v Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 in support of this submission. The judgment provides the following direction as to how this legislation should be interpreted:

"The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose.........................................................."

(paragraph 22)

Counsel also relied on the judgment in Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), 1 S.C.R. 27 with respect to this aspect of the case. In that instance, Mr. Justice Iacobucci adopted the approach articulated by Elmer Driedger in Construction of Statutes (2nd ed. 1983). That text states:

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

(page 87)

Counsel for the Union next addressed the provisions of the Occupational Health and Safety Act and Regulation 851. To repeat, section 25(1)(a) of the Act requires an employer to ensure that "the equipment, materials and protective devices as prescribed are provided". Counsel argued that Regulation 851 establishes what is meant by the word "prescribed" in the aforementioned section. For purposes of this dispute, he referenced sections 45(a) and 82 of the Regulation. As previously noted, the latter provision mandates that "a worker exposed to the hazard of foot injury shall wear foot protection appropriate in the circumstances". Counsel observed that, pursuant to section 28(1)(b) of the Act, the duty of the worker is simply to "use or wear the equipment, protective devices or clothing that the worker's employer requires to be used or worn". Ultimately, it was the position of the Union that the Employer should shoulder the cost of the safety footwear ordered by the Investigator. Simply stated, counsel asserted that this financial obligation flowed directly from the Employer's duty under section 25(1)(a) of the Act to ensure that prescribed safety shoes are "provided". On his analysis, the duty to provide safety shoes creates a responsibility, on the part of the Employer, to pay for same. He argued, in this regard, that it was not the intent of the Legislature to merely require the Employer "to assemble the articles of protective clothing for an employee". From his perspective, it is material that the legislation does not place an express obligation on the worker to either provide or pay for protective devices, such as safety footwear. Counsel urged me to conclude that placing this obligation on the Employer would be consistent with the broad purpose of the Occupational Health and Safety Act. The Union relied on the following authorities with respect to this branch of its case: Re Inco Ltd., (1986) O.O.H.S.A.D. No. 1; Re Megley Foods Inc. and United Food and Commercial Workers International Union, Local 312A (2000), 2000 CanLII 50266 (AB GAA), 89 L.A.C. (4th) 111 (Jones).

Re Inco Ltd., involved an appeal to a Director from an Order issued by an Inspector under section 90(1) of R.R.O. 1980, Regulation 694 relating to Mines and Mining Plants (now section 95(1) of R.R.O. 1990, Regulation 854). Section 90(1) provided as follows:

An employer shall provide personal protective equipment, shield, appliance or other device where a worker is exposed to the hazard of being burned by molten materials.

The Inspector found that the words "shall provide" compelled the employer to pay for the cost of gloves with forearm protection for those employees involved in the poling operation at the Anode Furnace Area of the Copper Refinery. While the Order of the Inspector was rescinded on appeal, the substituted Order still required the employer to provide the gloves in issue at its expense. The Director was clearly guided by the language of section 90(1) of the Regulation and, in particular, by the words "shall provide". It was the Director's opinion that the "common understanding" of the word "provide" should prevail and that "the party required to provide must bear the cost" (page 3).

In reaching the decision on appeal, the Director made specific reference to sections 14(1)(a) and (b) of the Occupational Health and Safety Act. These sections, subject to one (1) non-material change in terminology, are now sections 25(1)(a) and (b) of the current legislation. I note the following comment in the decision relating to how section 14(1)(a) should be approached:

"There is then a duty on the employer imposed by section 14(1)(a) of the Act to ensure that equipment as prescribed is provided. It should be noted that this section ONLY requires the employer to ensure that equipment is provided and DOES NOT impose the obligation to provide the equipment. Section 14 is silent on who is to provide it. ......................................................."

(page 3, Director's emphasis)

The Director also observed that section 14(1)(b) required the employer to ensure that the equipment, material and protective devices "provided by him" were maintained in good condition. Current section 25(1)(b) of the Act has replaced the words "provided by him" with "provided by the employer". It was the Director's judgment that this language was clearly meant to distinguish between equipment provided by the employer and equipment provided by others. He concluded as follows with respect to the intent of section 90(1) of the Regulation:

"It would appear that the Legislature in s. 90 of the Regulation intended to place a more onerous responsibility on the employer than that found in other sections of the regulation because of the extent of the hazard due to molten metal."

(page 3)

In Re Megley Foods Inc., the employer unilaterally implemented a new policy requiring employees to pay part of the cost for new uniforms. Under article 15(3) of the collective agreement, the employer was obligated to "furnish" certain items of wearing apparel. The article also stated that appropriate coats would be "provided" for employees in certain conditions and that all such wearing apparel remained the property of the employer. The Arbitrator determined that article 15(3) did not permit the employer to charge employees for the items of apparel specifically referred to therein. The reasoning behind this conclusion is reflected in the following excerpt from the award:

".......Contrary to the Employer's submission, it does not make sense to me to suggest that the Employer's obligation to "furnish" or "provide" these articles of clothing is restricted only to the mere logistics of assembling or getting these articles together for the employees, but does not require the Employer to pay for them. The ordinary meaning of "furnish" and "provide" certainly includes the concept of bearing the cost of the items which are furnished or provided, and one would have expected the parties to have used specific language if they had intended the Employer only to look after the logistics but at the employees' expense......................................................................Given that the parties specifically contemplated that the Employer would own the items in question, it would be absurd to suggest that the employees would pay for them.................................."

(page 120)

Counsel for the Union next referenced articles 22.3(a) and (b), 31.1(g)(i) and 46.2(a) and (b) of the collective agreement. As previously mentioned, these articles provide for reimbursement for the cost of safety footwear up to one hundred and twenty-five dollars $125.00) for certain identified full-time and permanent part-time employees and for casual employees "in all depots, warehouses, and those stores where they are required to operate power lifting equipment as part of their regular duties". Counsel argued that the articles, when read together, evidenced a contractual relationship or history in which the Employer provided reimbursement whenever safety footwear was deemed essential. He emphasized that at the time the current collective agreement was signed, employees at the Victoria Street Store did not perform the type of work for which safety footwear was considered essential. It was his assessment that this changed on March 13, 2003 with the Investigator's Order and the directive from the District Manager. It was the position of the Union that the Employer's failure to reimburse casual CSRs in this instance was unreasonable and constituted a violation of both article 32.1 of the collective agreement and section 25(2)(h) of the Occupational Health and Safety Act. The former provision states that the Employer "shall continue to make every reasonable provision for the health and safety of its employees, under the terms of the Occupational Health and Safety Act, during the hours of their employment". The latter enactment requires the Employer to "take every precaution reasonable in the circumstances for the protection of a worker".

As an alternate position, the Union asserted that the grievor's "unique situation" entitled her to reimbursement for the purchase of safety footwear. This position was largely premised on the following three (3) facts: (i) as a casual CSR, the grievor is entitled to be called in to work at the Industrial Road Store;

(ii) she has occasionally been offered and accepted work at that Store; and (iii) the Industrial Road Store has power lifting equipment. From the perspective of the Union, the existence of such equipment at the Industrial Road Store presented a potential health and safety hazard for all employees in the Store regardless of whether they were actually operating the equipment in question. Counsel submitted that the word "they" in the third line of article 31.1(g)(i) supported this interpretation. He also contested the Employer's assertion that the grievor's "regular duties" were performed only at the Victoria Street Store. It was the Union's submission that the grievor could engage in regular duties at another store, such as the Industrial Road location, and thereby trigger the obligation to reimburse under article 31.1(g)(i).

Counsel for the Employer noted that articles 22.3(a) and (b) and 46.2(a) and (b) have no application to casual employees. Rather, they speak to reimbursement of full-time and permanent part-time employees who purchase safety footwear. Counsel emphasized that the extent of the Employer's obligation to casual employees is delineated in article 31.1(g) of the collective agreement. On her reading of the provision, casual CSRs, who have completed their probationary period, are only entitled to reimbursement for the cost of safety footwear if they work in stores where they are required to operate power lifting equipment as part of their regular duties. Counsel submitted that, as a consequence, the grievor and other casuals working at the Victoria Street Store are not entitled to such reimbursement given that there is no power lifting equipment at that location. Additionally, it was her submission that the grievor's work at the Industrial Road Store would not be captured by article 31.1(g). Counsel suggested that as such work was only occasional, it could not be said that the grievor was required to operate power lifting equipment as part of her regular duties. In counsel's judgment, the grievor's regular duties are performed at the Victoria Street Store. She asserted that this result would obtain even if the grievor was called upon to operate power lifting equipment during the course of her occasional shifts at the Industrial Road Store. Ultimately, it was the Employer's position that the grievor did not satisfy the conditions established by article 31.1(g) in order to be entitled to reimbursement in respect of her work at either the Victoria Street or Industrial Road Stores. In summary, counsel argued that there was no contractual basis for the benefit claimed.

Counsel for the Employer next addressed the provisions of the Occupational Health and Safety Act and Regulations. On her reading, the legislation is designed to provide a minimum standard of protection vis a vis the health and safety of workers. She suggested it further contemplates that all of the affected parties will share the responsibility to promote workplace health and safety: see Re Holmes Foundry, (1986) O.O.H.S.A.D. No. 4; Re Esso Chemical Canada, a Division of Imperial Oil Ltd., (1986) O.O.H.S.A.D. No. 11. Counsel submitted that, generally, the Act does not address how costs relating to health and safety are apportioned between the parties. From her perspective, the intent of the Occupational Health and Safety Act is to leave such issues, including the economic consequences flowing from an Investigator's Order, to the parties to resolve through resort to the collective agreement.

Counsel for the Employer noted that section 25(1)(a) of the Occupational Health and Safety Act does not state that the Employer must provide the equipment, materials and protective devices as prescribed. Rather, the obligation is to "ensure" that these items are provided. Counsel referenced sections 25(1)(b) and (d) which speak of equipment, materials and protective devices "provided by the employer". Additionally, she referenced sections 25(2)(a) and (l) and 26(1)(i) which impose a duty on the Employer to "provide" the following: information, instruction and supervision to a worker to protect the health or safety of the worker; the results of an occupational health and safety report to the committee or to a health and safety representative; and safety related medical examinations and tests for workers as prescribed. It was counsel's submission these sections demonstrate that the drafters of the legislation used clear and express language in circumstances in which they intended to impose a duty on the Employer to provide something required under the Act. She argued, in effect, that it was material that this type of language is not found in section 25(1)(a).

Similarly, counsel for the Employer stressed that section 25(1)(a) of the Occupational Health and Safety Act is silent with respect to costs arising from health and safety requirements. She made the same point with respect to Regulation 851, and noted that section 82 thereof simply requires a worker exposed to the hazard of foot injury to wear appropriate foot protection. Counsel referenced sections 8(15), 9(35), 10(5), 26(3) and 48(2) of the Act. These sections impose an obligation on the Employer to pay for the following: for time spent by a health and safety representative to carry out specified statutory duties; for time spent by a committee member preparing for, or attending at, a committee meeting and for time spent carrying out specified statutory duties; for time spent by a member of a worker trades committee to attend meetings of the committee; for costs associated with a worker's participation in a prescribed medical surveillance program, medical examinations or tests; and for time spent by a certified member to carry out specified statutory duties. It was counsel's submission these sections establish that the drafters of the legislation used clear and express language when they intended to impose an obligation on the Employer to pay for something required under the Act. Again, she considered it material that this type of language is not found in Section 25(1)(a) or elsewhere in the Act or Regulations in respect of safety footwear.

The wording of the Order issued by the Investigator on March 13, 2003 is as follows:

"Pursuant to the Regulations for Industrial Establishments 851/90: A worker exposed to the hazard of foot injury shall wear foot protection appropriate in the circumstances.

NOTE: Adherence to Canadian Standards. "

(Exhibit B)

Counsel for the Employer reiterated that the Order merely reproduced the language found in section 82 of the Regulation and said nothing about who was to provide and pay for the safety footwear. As mentioned above, she argued that the silence was deliberate in the sense the legislation intended for the parties to resolve the issue of cost through resort to the collective agreement. Counsel repeated that under the terms of the instant collective agreement, casual CSRs in the grievor's situation are not entitled to reimbursement under article 31.1(g).

The Employer also relied on the Re Inco Ltd. decision discussed above. Counsel emphasized that the decision was premised on the wording of the Regulation which actually required the employer in that case to provide protective equipment to workers exposed to the hazard of being burned by molten materials. She distinguished that Regulation from the one applicable here relating to safety footwear. Counsel also noted that the decision provided an interpretation of then section 14(1)(a) of the Occupational Health and Safety Act. That section, as stated previously, is now section 25(1)(a). She observed that the interpretation given on the appeal was that section 14(1)(a) only required the employer to ensure equipment was provided and did not impose an obligation to provide same.

Counsel for the Employer also filed the following authorities: Re United Steelworkers Of America And Diebold Of Canada Ltd. (1966), 1966 CanLII 876 (ON LA), 16 L.A.C. 412 (Little); Re United Electrical Workers, Local 512 and Delamere And Williams Co. Ltd. (1971), 1971 CanLII 1936 (ON LA), 23 L.A.C. 56 (Johnston); Altamont Private Hospital and Hospital Employers' Union, Local 180 (1982), unreported (Orr); Re Health Labour Relations Association Of British Columbia (Surrey Memorial Hospital) And Hospital Employees' Union, Local 180 (1985), 1985 CanLII 5459 (BC LA), 29 L.A.C. (3d) 421 (Larson); Re Cominco Ltd. and United Steel Workers Of America, Local 480 (1986), 2 C.L.A.S. 125 (Williams); Re McDonnell Douglas Canada Ltd. And United Automobile Workers, Local 1967 (1986), 1986 CanLII 6632 (ON LA), 24 L.A.C. (3d) 181 (Rayner); Re Griffin Canada Inc. and National Automobile, Aerospace and Agricultural Implement Workers of Canada (C.A.W.-Canada), Local 144 (1993), 31 C.L.A.S. 321 (Hamilton). It was the substance of counsel's argument that in cases where an employer has been held responsible for the cost of protective devices, including safety footwear, the decisions have been based on clear wording in the collective agreement, the relevant health and safety legislation, or the Order issued in respect of the issue. Counsel submitted that these cases are distinguishable from the instant dispute.

In Diebold Of Canada Ltd., the Ontario Department of Labour issued an Order that the employer was to ensure that suitable protective footwear was worn by employees who were liable to be exposed to foot injury by the falling of sharp objects. The employer then posted a notice that all employees must wear approved safety shoes in order to be permitted to work in the plant. The employer also made arrangements for a safety shoe truck to attend at the plant so that employees could purchase the requisite footwear. Article 12.01 of the collective agreement obligated the employer to make reasonable provisions for the safety and health of employees during the hours of their employment. More importantly, the article stated that protective devices and other equipment necessary to safeguard employees from injury "shall be provided by the Company". A majority of the Board of Arbitration found that this language, and specifically the obligation to provide, rendered the employer responsible for the cost of the safety shoes.

In Delamere And Williams Co. Ltd., a directive was issued by the Industrial Safety Branch of the Department of Labour concerning adequate protective footwear. The company thereafter informed employees that safety shoes had to be worn and made arrangements for employees to purchase same by payroll deduction. Article 17 of the collective agreement stated that the company "shall provide whatever protective devices the company considers are necessary to protect the safety and health of the employees". A majority of the Board of Arbitration held that this language obligated the company to supply safety shoes at its expense.

In Re Cominco Ltd., the collective agreement did not obligate the employer to provide protective jeans to employees working in its zinc melting plant. The agreement, however, incorporated the Industrial Health Safety Regulations by reference. Section 8.14(2) thereof provided that, "Every employer shall equip each worker at no cost the worker, with ... and other specialized protective garments and equipment, where required by these regulations". The Arbitrator determined that this language required the employer to provide the protective clothing in issue at its expense.

In Re McDonnell Douglas Canada Ltd., a Ministerial Order was issued requiring the wearing of safety footwear in certain areas of the company's operation. The company posted a notice concerning this requirement and advised employees that such footwear could be purchased by way of payroll deduction from a safety shoe truck which attended the premises weekly. Under article 17, section 1 of the collective agreement, the company agreed to "provide protective clothing where the need is recognized..." The Arbitrator interpreted this language as requiring the employer to provide protective clothing, including safety shoes, to its employees without any cost to them. He found, however, that the Union was estopped from relying on this interpretation given its conduct in the prior round of bargaining.

In the Altamont Private Hospital award, it was held that the employer was not required to supply and pay for uniforms because the terms and conditions of article 11.01 had not been met. Similarly, in Surrey Memorial Hospital the Arbitrator determined that he lacked jurisdiction to order the employer to provide and pay for special lenses for those employees working at video display terminals because the collective agreement did not provide for any health and safety standards, other than for a joint commitment to the prevention of accident and disease through the establishment of a Joint Occupational Health and Safety Committee. Counsel for the Employer asked, in effect, that I take the same approach here given that a strict reading of article 31.1(g) of the collective agreement does not entitle the grievor to claim reimbursement for the cost of safety footwear.

In Re Griffin Canada Inc., the collective agreement in article 23.07 provided that employees would provide their own safety shoes and would then, upon proof of purchase, be reimbursed by the employer in an amount equal to seventy-five percent (75%) of the cost of the shoes up to a maximum of eight-five dollars ($85.00). The employer in that case adopted a new rule or policy that in future all safety boots purchased by employees must have metatarsal protectors. The award focuses largely on the employer's right to promulgate such a change. The Arbitrator, ultimately, held that there was nothing in the collective agreement restricting the right of the company, through its rule making power, to designate what specific features must be part of safety shoes provided this right was exercised in a reasonable fashion. In the circumstances, he found the authority was reasonably exercised and dismissed the grievance. I have not been persuaded that Re Griffin Canada Inc. offers much assistance with respect to the resolution of this dispute. I do note, however, the following comment found at page 10 of the award:

"......................Arbitral law provides that, unless an agreement otherwise prescribes, an employer is entitled to require employees to purchase and/or provide, at their own cost, protective clothing or devises, subject to the overall test,. that the requirement be reasonable."

In the final analysis, it was the position of the Employer that the issue raised by the instant grievance should be addressed through future negotiations and not by this arbitration. Counsel submitted that this was the more appropriate course to follow in view of the absence of express language in the collective agreement, and the lack of a statutory standard, requiring the Employer to pay for the safety footwear in question in this case.

The Order issued by the Investigator on March 13, 2003, as reproduced above, merely restates section 82 of Regulation 851. The Order is silent as to who is to provide or pay for the safety footwear addressed therein. As a consequence, the Order, by itself, is not helpful in resolving the outstanding issue between these parties.

The parties do not differ on the broad purpose of the Occupational Health and Safety Act. Additionally, they agree that it should be interpreted as remedial legislation and in accordance with its intent, meaning and spirit. Ultimately, the core of their disagreement is whether the Act and Regulation provide the grievor with a substantive right, apart from the collective agreement, to reimbursement for the purchase of safety footwear.

I accept that a duty to provide safety footwear would create a further obligation to pay for same. The connection between a duty to provide and an obligation to pay is at the heart of much of the jurisprudence relied on by the parties, including Re Inco; Re Megley Foods Inc.; Diebold of Canada Ltd.; Delamere and Williams Co. Ltd.; Re Cominco Ltd.; and Re McDonnell Douglas Canada Ltd.

The difficulty in this instance, in the context of the Union's argument, is that section 25(1)(a) of the Occupational Health and Safety Act does not impose an obligation to provide equipment, materials and protective devices. Rather, it states that the Employer "shall ensure" that such items as prescribed are provided. This distinction, in terms of obligation, was recognized in Re Inco. The appeal decision of the Director in that case was that section 14(1)(a) of the Occupational Health and Safety Act, (now section 25(1)(a)) only required the employer to ensure that equipment was provided and did not impose an obligation to actually provide the equipment. In the words of the decision, the section was "silent" on who is to provide the safety equipment. The Director's reasoning on this aspect of the case is not supportive of the interpretation the Union asks that I give to section 25(1)(a). I note that the actual decision in Re Inco was premised on the wording of section 90(1) of R.R.O. 1980, Regulation 694 relating to Mines and Mining Plants. That Regulation obligated the employer to "provide" personal protective equipment, such as gloves, to employees exposed to the hazard of being burned by molten material. On my reading, that obligation is distinguishable from the one imposed on this Employer in respect of safety footwear. Nowhere in the sections of the Act and the Regulation relied on by the Union can I isolate a specific direction that the Employer provide, and accordingly pay for, the safety footwear required in the Order.

I have reviewed the various sections of the Occupational Health and Safety Act in which an obligation to either provide or pay for a health and safety related item is specifically imposed on the Employer. In my judgment, these sections, which have been referenced above, support the Employer's argument that the drafters of the legislation used express language when they intended to create this type of direct obligation. I accept the Employer's submission that the language in the sections relied on is materially distinct from that found in section 25(1)(a) and that the latter provision does not require it to either provide, or pay for, the safety footwear in question. In the final analysis, I have not been persuaded that the provisions of the Occupational Health and Safety Act and Regulation 851 provide the grievor with a substantive statutory right to be reimbursed for the costs associated with the purchase of safety footwear.

The parties in articles 22.3(a), 46.2(a) and 31.1(g) have established the contractual parameters as to when full-time, permanent part-time and casual employees will be reimbursed for the purchase of safety footwear and to what extent. For purposes of this dispute, I consider it material that they have addressed the entitlement of casual employees to such reimbursement. Article 31.1(g)(i) provides, in this regard, that casual employees in the stores will be entitled to reimbursement for the cost of CSA approved safety footwear up to one hundred and twenty-five dollars ($125.00) per twelve (12) month period provided they satisfy two (2) conditions. First, they must have completed their probationary period. Second, they must work in stores "where they are required to operate power lifting equipment as part of their regular duties". It is apparent from the Agreed Statement of Facts and Issues, reproduced above, that the Victoria Street Store does not have power lifting equipment. As a consequence, it cannot be said that the grievor is required to operate power lifting equipment as part of her regular duties when working in that Store. Simply stated, the grievor does not satisfy one (1) of the necessary conditions for reimbursement agreed to by the parties in article 31.1(g)(i). It follows that the Employer could legitimately deny the grievor's request for payment in respect of her work at the Victoria Street Store.

In contrast to the Victoria Street Store, the Industrial Road Store does have power lifting equipment. It is agreed that the grievor has occasionally been offered and accepted work at the latter location. There is no evidence before me as to precisely how often the grievor has been called in to work at the Industrial Road Store. More importantly, there is no evidence as to whether she has ever operated power lifting equipment while there. On my reading, article 31.(1)(g)(i) contemplates that the casual employee must actually be required to operate such equipment as part of their regular duties. I am not satisfied it is sufficient for purposes of the article that power lifting equipment is, or may be, used by other employees while the grievor is at the Industrial Road Store. By way of obiter, I do think that the grievor would be entitled to reimbursement if the operation of such equipment was part of her regular duties whenever she worked at that Store. I consider the Employer's restriction of entitlement to the grievor's primary workplace as excessively narrow and, indeed, inconsistent with the purpose of this type of health and safety provision. In conclusion, I have not been convinced on the evidence agreed to that the grievor's unique situation entitles her to the benefit claimed.

I have determined that the provisions of the Occupational Health and Safety Act do not provide the grievor with a substantive statutory right to be reimbursed for the purchase of safety footwear. Similarly, I have found that the grievor is not entitled to reimbursement under the strict letter of the collective agreement. It naturally follows, in my judgment, that the Employer's denial cannot in the circumstances amount to a violation of either 25(2)(h) of the Act or article 32.1 of the collective agreement. Lastly, I cannot agree that the contractual provisions reflect a history of the Employer providing for reimbursement whenever safety footwear is deemed essential. Rather, the parties have addressed this issue in negotiations and have agreed that such footwear will not be paid for unless casual employment falls within the strict confines of article 31.1(g). Ultimately, I accept the Employer's submission that this issue should be dealt with through future negotiations and not by this arbitration. Given the lack of statutory or contractual language requiring the Employer to provide and pay for safety footwear in the present circumstances, an award in the Union's favour would be tantamount to an alteration, modification or amendment of the collective agreement. The Grievance Settlement Board is prohibited from taking such action under article 27.10(a) of the agreement.

For all of the above reasons, I uphold the position taken by the Employer in this proceeding. The grievance is denied.

Dated at Toronto, Ontario this 26th day of November, 2003.