Hamilton Public Health Laboratory v. OPSEU Local 203, AMAPCEO and Ministry of Labour
Parties
2573-00-HS; 2574-00-HS Hamilton Public Health Laboratory, Appellant v. OPSEU Local 203, AMAPCEO and Ministry of Labour, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; December 22, 2000
Decision
1On November 28, 2000 the appellant filed an appeal of an Order made by an Occupational Health and Safety Inspector in Field Visit No. 936737 dated November 24, 2000. The appellant’s appeal of the Inspector’s Order has been assigned Board File No. 2573-00-HS. The appellant has also requested that the Board suspend the operation of the order under appeal pending the disposition of the appeal Board File No. 2573-00-HS.
2Section 61(1) of the Occupational Health and Safety Act (the “OHSA”) provides that an appeal of an Inspector’s order must be filed within 30 days of the making of the order. The appeal is timely.
3At this point it would appear that the following are parties to this appeal:
Hamilton Public Health Laboratory
Inspector Scott Hanville
Ontario Public Service Employees’ Union, Local 203
The Association of Management, Administrative, and Professional Crown Employees of Ontario (“AMAPCEO”)
4The appellant is requesting the Board suspend the operation of the order under appeal pursuant to section 61(7) of the OHSA. Section 61(7) provides:
- (7) On an appeal under subsection (1), the Board may suspend the operation of the order appealed from pending the disposition of the appeal.
5The order states:
Order No. 1
Pursuant to the Act Section 25(2)(h) the employer shall take every precaution reasonable in the circumstances for the protection of a worker by ensuring the centrifuge in the Clinical Microbiology Department is equipped with an interlocking device that will prevent,
(a) any lid or covering guard from being opened or removed while the rotating drum or basket is in motion; and
(b) the starting of the drum or basket while the lid or covering guard is open or removed.
6The same order applies to the Serology Department.
7The factors to be considered in suspending an inspector’s order are principally as follows:
(i) whether the suspension of the order would endanger worker safety,
(ii) the degree of prejudice to the employer, and
(iii) whether there is a strong prima facie case for a successful appeal of the order.
8The appellant provides a number of reasons why in its view the order should be suspended. First, they submit that the workers using the centrifuges have operated the equipment without incident for many years. Second, there are signs indicating the lids should not be opened during operation of the centrifuge.
9In terms of prejudice, the appellant contends that there will be a significant loss of specimen processing capacity and that loss will impact upon a large population that is serviced in the area. They assert that this order will impact dramatically upon the health of patients (possibly causing mortalities). In addition, it may result in potential job loss for employees and potential overtime costs.
10The appellant’s request for the suspension of the order is supported by the position of one of the responding parties, AMAPCEO. The work may be transferred to other facilities which will clearly have an impact upon its members. The employer contends that Section 31 of Regulation 851/90 of the regulations pertaining to Industrial Establishments does not apply to the centrifuges at issue as they are governed by Regulations 67/93 which pertains to Health Care and Residential Facilities.
11The appellant further contends that the requirement for an interlocking device does not apply to laboratory centrifuges covered under the legislation and they are therefore likely to succeed in the appeal.
12The appellant advises that funding for two new centrifuges has been approved but the tender process will result in a delay of up to three months before the new equipment is received by the appellant.
13In assessing the factors, the Board must be guided by the health and safety of the workers. A degree of deference must be afforded to an inspector’s orders. On its face, it appears there is risk to workers to have the centrifuges operating without an interlocking device to prevent the lid or covering guard from being opened or removed while the centrifuge is in operation and to prevent the starting of the drum or basket while the lid or covering guard is opened or removed. Accordingly, I am not persuaded that the suspension of the order would not endanger worker safety. I have evaluated this consideration against the prejudice alleged by the appellant and I am not satisfied that the prejudice outweighs the potential harm to employees if the order were to be suspended.
14Having regard to the submissions of the parties, the reasons expressed and the facts of this case, I decline to suspend the orders issued in Field Visit Number 936737 dated November 24, 2000.
15The appeal is referred to the Registrar for scheduling.
“Marilyn Silverman”
for the Board