3936-98-HS Bradleigh Construction Limited Canada, Appellant v. Ministry of Labour, Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Douglas A. Gullett for the applicant; Alicia Gordon-Fagan, Nadia Elgohary and Dwayne Mittelstaedt for the Ministry of Labour.

DECISION OF THE BOARD; September 11, 2000

1This is an appeal of a "stop work order" dated January 18, 1999. The order reads as follows:

A platform capable of moving and supported by a forklift truck, front-end loader or similar machine shall not be used as a workplace. No further use of forklift truck as a man lift. Note: submit copies of manufacturers design and use to lift workers in order to have machine approved for use.

2The Health and Safety Inspector cited subsection 57(6) of the Occupational Health and Safety Act, (the "Act") and O.Reg. 213/91 section 107 of the construction regulations. Section 107 provides as follows:

No worker shall use as a workplace a platform, bucket, basket, load, hook or sling that is capable of moving and that is supported by a forklift truck, front-end loader or similar machine.

3Douglas Gullett testified for the appellant and Dwayne Mittelstaedt and Nadia Elgohary testified for the Ministry of Labour.

4The following are the relevant facts. The appellant manufactured a man basket for a forklift called a "Zoom Boom" to be used on construction sites. The man basket was designed to elevate up to two workers. It slides on to the forks of the forklift and a safety chain is attached around the forks. There is a metal cage approximately 4 feet high. A maximum of two workers are permitted in the basket at one time. The forklift itself is designed to lift 6000 lbs. and was intended for use with a man basket designed by the manufacturer. The forks can be raised and extended. They do not move sideways. The device is controlled by the worker in the cab. The appellant uses the device to get a worker up close to a high place on a building upon which it is working. The forklift can raise the basket 30 to 32 feet. If it has to be moved, the basket is brought down and is moved although the worker remains in it. According to the appellant it is self-levelling and very stable as the forklift was designed for use with a man lift. The manufacturer tested the forklift for stability with its own basket and with a 6,000 lb. payload so the appellant did not do separate tests for stability as its basket is lighter. It did perform drop tests however. Pothole tests were not done. The appellant argued pothole tests were not necessary as the device was stationary when the workers were raised. Since it has not been able to use this device the appellant has had to rent stationary man lifting devices designed for that purpose.

5On January 26, 1998 Inspector Chris Beatson observed the man basket being used and directed the following:

Provide an Engineers Report on the modification to the JBC forklift for the man basket by 29 January 98. Provide a ladder for access to the roof level of the building.

The worker in the man basket is to be provided by a fall arrest system attached to the equipment.

6On March 5, 1998 Inspector Beatson issued a stop work order on the man basket. The appellant made the modifications directed and provided the engineering reports. Mr. Beatson subsequently rescinded the stop work order. As far as the appellant was concerned, its man lift therefore met with the approval of the Ministry of Labour.

7However on January 18, 1999, Inspector Mittelstaedt observed the fork lift truck with the man basket attached to the forks. He was advised by a worker that a worker would be placed in the basket and lifted by the forklift to work on the upper part of the building. He then issued the order set out in paragraph 1. He relied upon O. Reg. 213/91 section 107 which provides a complete prohibition against the use of man baskets on movable platforms such as forklifts on construction sites. He advised Mr. Gullett that if he wanted to use the device he would have to approach the Ministry of Labour under section 3 of the regulation to allow a variance in the procedure. He also advised him that he could file an appeal of the order. In fact, there is no formal process for acquiring Ministry approval for variances under s.3 in those situations where they apply. Both inspectors subsequently met with the appellant but Mr. Mittlelstaedt did not rescind his order.

8Inspector Mittelstaedt agreed, when asked by Mr. Gullett in cross-examination, that the device was capable of handling a two-person hoist. He went on to state again, erroneously, that if the appellant wanted to use the device it would have to seek a variance under section 3 of the regulation. He was under the impression that the appellant could write to the Ministry and an "engineer or committee" could then approve the device.

9Mr. Gullett does not dispute that the Zoom Boom with man basket is prohibited on a construction site under the regulation. However, he asks that the Board permit him to use it as the appellant has made every effort to make it safe. Mr. Gullett was under the impression given what Inspector Mittelstaedt had told him, that such relief from the language of the regulation could be granted under section 3. He understood that the proper process for obtaining that relief was to appeal the order. He argues that the forklift was designed to be used with a man basket although the one the appellant is using is not the manufacturer's design but one it designed. He points out that he has complied with Inspector Beatson's orders, and that the device has been independently tested. The forklift was designed for an even heavier basket than the appellant was using. Furthermore, the worker wears a harness and both the worker and operator must take certified courses with respect to using man baskets. There is an inspection procedure which must be followed and is kept on the machine itself. He points out that this very device would be permitted in an industrial setting and that the Ministry permits cranes to be fitted with man baskets or work platforms.

10The Ministry replies that if a crane is to be used for such a purpose it is derated so that it can be used for that purpose only. The Ministry also points out that for a crane to be used for such a purpose it has to comply with three pages of regulations but no such regulations have been passed permitting the adaptation of a forklift in this manner.

11The Board also heard from Nadia Elgohary, an engineer from the Ministry who explained the reason for the prohibition in the regulation. She explained that using such a device on a construction site is dangerous because of uneven ground, and because the ground can be unstable due to excavation. Unlike an industrial setting, a construction site is not a controlled environment and the conditions change daily. She also testified that her position when consulted by Inspector Mittelstaedt on this matter was that section 107 of the regulation was a complete prohibition against such a device and that section 3 could therefore not apply. Such a variance would not offer a worker the equal protection of not using the device at all. According to Ms. Elgohary there are machines designed for the purpose of lifting personnel on construction sites and they must be used.

12The Ministry's position was straightforward and mirrored that of Ms. Elgohary. The appellant has a man basket on a forklift for the purpose of raising and lowering personnel and section 107 of the regulation prohibits such a device. Where the legislature has intended to permit similar modifications, such as with cranes, it has passed extensive regulation. There was some confusion with respect to the Ministry's argument about section 3. The Ministry claimed that a party seeking a variance under section 3 had to apply to a committee of the Ministry. The Board pointed out that the regulation does not appear to require any such application but was informed that was the Ministry's practice. However, the Board subsequently received correspondence from the Ministry advising that "an employer is not required by Ministry policy to give notice to the Ministry of any variance of the regulation." In any case it was the Ministry's position that section 3 does not apply to a mandatory section like section 107.

DECISION

13It is unfortunate that Mr. Gullett was misled into believing that he was attending at the Board to request permission for the company to use a device that is not in compliance with section 107 and that the Board would have the power to grant such a request under section 3. It is also unfortunate that the appellant was subject to the confusion of having two different inspectors making two different orders. However, inspectors are only human and for all their considerable efforts to understand and apply extremely complicated legislation they sometimes make errors. Parties are always advised of the opportunity to seek an appeal as the appellant was in this case.

14It is apparent from the evidence presented at the hearing that the appellant has made a considerable effort to make the man basket a safe device. It complied with Inspector Beatson's orders, the man basket was reviewed by an independent engineer and there is an inspection procedure in place. The operator and the worker have to take certified courses and the worker must wear a full body harness.

15However the regulation set out in paragraph 2 provides a complete prohibition against the kind of device being used by the appellant. The appellant believes that the device is safe and has tested it to satisfy itself of that. Nevertheless, as the regulation is a complete prohibition the Board has no discretion to permit the use of such a device no matter what modifications have been made.

16The appellant relied upon section 3 of the Regulation which provides as follows:

3. An employer, owner or constructor may vary a procedure required by this Regulation or the composition, design, size or arrangement of a material, object, device or thing as required by this Regulation,

(a) if the procedure, composition, design, size or arrangement as varied affords protection for the health and safety of workers that is at least equal to the protection that would otherwise be given; and

(b) if the employer, owner or constructor gives written notice of the varied procedure, composition, design, size or arrangement to the joint health and safety committee or the health and safety representative, if any, for the workplace.

17However, section 3 is inapplicable to a complete prohibition such as the one found in section 107. An employer cannot vary a procedure, or the composition of a design, size or arrangement of a material, object, device or thing it is prohibited from using. No modification can make such a prohibited device equal to the safety of not using it at all. Common sense and a clear reading of the language dictates that section 3 can only be used to substitute an equally safe practice for one the Act permits in the first place.

DISPOSITION

18For the reasons stated above, this appeal is hereby denied.

"Laura Trachuk"

for the Board