United Steelworkers of America, Local 1005 v. Stelco Inc. (Hilton Works), 2000 CanLII 12471

0481-98-HS United Steelworkers of America, Local 1005, Appellant v Stelco Inc. (Hilton Works) and Ministry of Labour and Inspector Doug Kariam, Responding Parties.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: David Jacobs, Seema Lamba, Warren Smith and Dave Lumsden for the appellant; Robert Little for Stelco Inc. (Hilton Works) and Bridget Lynett and Doug Kariam for the Ministry of Labour.

DECISION OF THE BOARD; March 30, 2000

1. In a decision dated April 20, 1998 the Inspector, Doug Kariam, declined to make an order after receiving a complaint from members of the appellant on the Joint Health and Safety Committee of the Hilton Works site at Stelco Inc. This is an appeal of that decision pursuant to section 61(1) of the Occupational Health and Safety Act (the “Act”).

2. The responding party Stelco Inc.(Hilton Works) (referred to as the “company”) has raised a preliminary objection, supported by the Ministry of Labour, that the appeal does not make out a prima facie case. They also assert that the appeal requests “prospective” remedies which the Board does not have the power to grant. The company and the Ministry also allege that the appellant (referred to as the “union”) should have given notice to construction companies working under contract at Hilton Works which might be affected by the decision. The company and the Ministry request that the appeal therefore be dismissed at the outset and prior to any evidence being called.

3. A preliminary objection alleging that there is no prima facie case must be determined on the basis of the allegations contained in the appellant’s pleadings and any facts upon which the parties agree. The following are therefore the relevant facts for the purpose of the preliminary objection.

Facts

4. The union represents a bargaining unit of all hourly and production employees at “Hilton Works”.

5. In December, 1997 the union members of the Joint Health and Safety Committee (referred to as the “JHSC”) asked to be allowed to inspect those parts of the Hilton Works in which construction contractors were working. Although this particular request was made in December, 1997, it appears that the issue had been a matter of dispute for some time. A Ministry Inspector had directed the company to allow the committee members access to a contractor site on at least one previous occasion. That order is the subject of an appeal by the company in Board File No 3941-96-HS.

6. The company denied the union members’ request to visit the area where contractors were working citing the “policy” which is reflected in its pleadings. According to that policy, the company will permit inspections where the union’s members are actually working “including those areas and conditions that could impact on the health and safety of the applicant’s members”. If the applicant’s members “have health and safety concerns and questions regarding contractors, they are entitled to raise those issues through the Stelco contact person who is co-ordinating the work of the contractors” and “where the applicant’s members are involved in an accident or near-miss accident that also involves a contractor, the applicant’s JHSC representative is entitled (by agreement) to participate, and a written investigation report is distributed to those in attendance.” The company agrees that it has refused to allow the union to inspect locations at the Hilton Works where a contractor is working under a contract it calls a “License of Occupation”. It asserts that in those circumstances it is an “owner” under the Act. The company holds that contractors working under Licenses of Occupation are responsible for their own inspections. The contractors must make inspection reports available to the company but they are not available to the JHSC.

7. After receiving the company’s response, the union contacted the Ministry of Labour and asked the Inspector to make an order permitting them to inspect any locations at the Hilton Works including those areas where contractors are working. The written complaint stated as follows:

Further to our discussion on December 8, 1997 with regards to the role of the Stelco Hilton Works JHSC and contractors I would like to file the following complaint.

This complaint alleges tht Stelco Steel, Hilton Works is in violation of the Occupational Health and Safety Act in that:

Section 9, subsection (18), clauses (b) and (c) require the Employer to receive recommendations from the Health and Safety Committee for improvements of the health and safety of workers, and the establishment, maintenance and monitoring of health and safety programs, measures and procedures.

Section 9, subsection (18), clause (d) requires the Employer to provide information to the Health and Safety Committee on any potential or existing hazards and work practices in similar or other industries.

Section 9, subsection (29) requires the Employer to provide any information and assistance to the committee member performing the monthly inspections.

Section 9, subsection (32) requires the Employer to post the names and work locations of committee members in a conspicuous place(s).

Section 9, subsection (18), clause (a) gives the JHSC the power to identify hazards.

Section 9, subsection (31) gives a worker member of the JHSC the right to inspect and investigate fatalities and critical injuries.

At the December 4, 1997 Senior JHSC meeting I made the following recommendations:

1. That the Divisional and Department JHSC Co-chairs be afforded the opportunity to tour contractor job sites to inspect the facilities and to audit their safety performance.

2. That the Divisional and Department JHSC Co-chairs be afforded the opportunity to participate in all accident and near miss investigations in their respective areas.

3. That the Divisional and Department JHSC Co-chairs be provided with the names and phone numbers of all contractor JHSC members.

The Company’s response to all three recommendations was no. It is Stelco’s position that contractor safety is a management function and the Hilton Works JHSC should limit its activities to Local 1005 members.

During our previous discussion of this issue you requested a written copy of my recommendations along with the minutes of the JHSC meeting reflecting the Company’s response. Unfortunately, at the time of writing this letter the minutes are still in dispute and I feel that issues with contractors are escalating to the point where I can no longer wait. I request your intervention.

Work has begun on the rebuild of #7 Battery in the Coke Ovens involving a large number of contractors. Stelco entered into a 'care and custody' agreement with the contractor who filed a notice of project under the Regulation for Construction Projects which I believe was done in part to limit the involvement of this committee as we are now being denied access to the site and involvement in safety issues.

Workers in the area of #7 Battery have brought numerous safety violations to my attention which are only recognized when we bring them to the Company’s attention. This leads me to believe that Stelco management is either incapable or unwilling to sincerely deal with contractor safety without the direct involvement of the Hilton Works JHSC.

I request tht you investigate this matter and enforce section 9 of the O.H.S.A.

8. The Inspector’s decision which forms the basis for this appeal is dated April 20, 1998 and states as follows:

This visit is made to respond to a written complaint received by the Ministry of Labour. In summary the complaint deals with the company’s response to three recommendations made by a worker health & safety representative on the Joint Health & Safety Committee (JHSC). The company did not agree with the following recommendations made by the worker rep. at the December 4, 1997 JHSC meeting:

1.That JHSC co-chairs be afforded the opportunity to tour contractor job sites and facilities and audit their safety performance.

2.That JHSC co-chairs be afforded the opportunity to participate in all accident investigations.

3.That JHSC co-chairs be provided with names and phone numbers of contractor JHSC members.

Local 1005 of the USWA has requested the Ministry to investigate the response and endorse the application of section 9 of the OHSAA RSO 1990.

With respect to the JHSC co-chairs touring contractor jobsites, the specific facts from each case must be considered. A contracted maintenance worker is to be captured within Stelco’s Health and Safety Program. Under these circumstances, contracted workers are within the scope of powers of the workplace JHSC, as outlined under section 9 of the OHSA. Regarding the auditing of a contractor’s safety performance, that is the duty of the employer.

With respect to participation in all accident and near miss investigations, again the facts of each case must be considered. The Act provides the right for members representing workers to investigate critical or fatal accidents at the workplace where any person is killed or critically injured at the workplace, and a local 1005 member is working in connection with the case of the accident, then a worker representative from Local 1005 is designated to investigate the OHSA does not address participation near miss or other lost time accidents.

With the exception that it may be reasonable in the circumstances, the OHSA does not address providing committee members with names and telephone numbers of contractor safety committee members.

Contacts: Glenn Weston, Manager of Occupational Health & Safety

Bill McGilvery, Senior Safety Analyst

Dave Lumsden, Worker Health & Safety Rep. –

Chairperson Division

Bill McKnight, Worker Health & Safety Rep. –

Chief Rep. For Blast Furnace.

9. The Inspector thus decided that the “workplace” which the JHSC is entitled to inspect pursuant to section 9(26) and(27) of the Act, is subject to change and must be decided on a case by case basis.

10. The application also alleges that since May, 1997 (a few months subsequent to the Inspector’s order in Board File No. 3929-96-HS) the company has required contractors to have joint health and safety committees and to provide it with copies of the committee’s monthly inspection reports. The union alleges that the company refuses to provide its JHSC members with copies of those reports.

11. As noted in the complaint above, the union alleges that the company has entered “care and custody” agreements (the company calls them “License of Occupation” agreements) with certain contractors and takes the position that areas defined in those agreements are not subject to inspection by the JHSC.

12. Under the heading “Background” in its application, the union also alleges that on July 9, 1997 during a monthly inspection, one of its members on the JHSC requested access to part of the plant where a contractor was working and was denied. He was told that a contractor did its own inspections but was refused a copy of the report. On August 14, 1997 the committee member asked the company’s General Foreman Plant Utilities if he would be permitted to do an inspection of the area where the contractor was working and was again denied. On August 31, 1997 he made the same request of the Utilities Superintendent, who was on the JHSC, and was again refused.

13. On October 31, 1997, the issue was raised with the Divisional JHSC. The union members requested access to inspect the area where the contractor was working and “any other contractor sites or projects and copies of all workplace inspections conducted by the Contractor’s H & S Committee”. At the November 7, 1997 Utilities Divisional JHSC meeting, the company advised the appellant that the request was denied “as the Contractor confirms compliance with the H & S legislation regarding inspections, H & S reps and committees”. The issue was then raised at the third quarter 1997 Senior Health and Safety Committee meeting. The union alleges that after the company refused its request at all levels of the JHSC the complaint was sent to the Inspector.

14. The union also alleges that there have been “numerous and frequent incidents affecting or potentially affecting the health and safety of the Applicant’s members and/or contractor employees emanating from contractor sites at the workplace, both care and custody sites and otherwise”. The pleadings then refer to a number of (often unparticularized) incidents relating to work being done by a contractor working under a “care and custody” agreement in the No. 7 Coke Oven Battery area including a contractor vehicle driving through a wire compound fence, a contractor employee burning a welding torch above compressed glass bottles and sparks falling on the bottles; contractors blocking roadways without road closures. The union complains that the JHSC was not permitted to investigate these incidents. The union also alleges that when an employee of another contractor not working under a care and custody agreement, was critically injured at the workplace the company asked the contractor to do the follow-up investigation without the participation of the JHSC. The union also alleges that “contractors have been seen driving manlifts without safety escorts; a contractor’s trucks have been observed discharging oily substances at the workplace and that two fires have broken out at the benzol plant which had previously been a “no open flames facility” and where a contractor was working under a care and custody agreement”.

15. The union also alleges that its members “regularly work at, near, in conjunction with, over or under contractor employees ” It also alleges that its members:

“work on overhead pipes, facility and machinery, underground pipes, facility and machinery, and nearby pipes, facility and machinery, before, during and after the performance of work by contractors. Work performed by the Applicant’s members or by contractors may be hazardous, and may cause the release of hazardous materials in the immediate area, contiguous areas or distant areas of the workplace. Contractors may leave unsafe conditions behind them causing a hazard to the Applicant’s members. Work performed by either of the Applicant’s members or contractors may adversely affect the other”.

16. The following remedies are sought in the application:

17. An order compelling Stelco to permit the Applicant’s JHSC representatives to perform their functions under the Act, including but not limited to:

a. Permitting Divisional and Departmental JHSC Co-chairs or delegates representing the Applicant to tour, audit safety performance at and inspect the workplace including but not limited to job sites, areas, operations and facilities of contractors at the workplace whether under “care and custody” agreements or not;

b. Permitting Divisional and Departmental JHSC Co-chairs or delegates representing the Applicant to participate in all accident and near miss investigations in their respective areas;

c. Providing all Divisional and Departmental JHSC Co-chairs representing the Applicant with names and phone numbers of all members of contractor joint health and safety committees in the workplace; and

d. Providing Divisional and Departmental JHSC Co-chairs representing the Applicant with copies of all reports concerning health and safety in the workplace including but not limited to all contractor inspection reports audits and investigation reports.

4. An order compelling Stelco to comply with the Act and in particular, sections 9, 25, 27, 51 and 52 thereof.

5. A declaration that Stelco has breached the Act as aforesaid.

6. Such further and other relief as may be advised.

Submissions of the Parties

17. The company submits that the application should be dismissed as the orders sought cannot, or should not, be granted. It argues that the orders sought by the union are prospective and declaratory and that the Board therefore has no power to make them. It points out that, although the initial letter from the union to the Ministry of Labour referred to the No. 7 Coke Oven, the orders requested in that letter did not relate to that project. It claims that the Inspector did not issue an order, he wrote a narrative, with parts of which the company does not agree, but which is not subject to appeal. The company further points out that the orders sought by the union in this application do not specifically relate to the projects it refers to in the “background” part of the application and that it is not seeking any orders with respect to those situations. The company claims that the union is seeking an order that is to apply to “future facts which are unknown at the present time” but that the Inspector can only issue an order that relates to an existing contravention. The Board’s jurisdiction on an appeal under section 61 is limited to that of an Inspector. The company notes that section 66 provides that a party can be prosecuted for failing to comply with an order and that a prosecution could only sensibly relate to an existing contravention and not some future event.

18. The company argues that the geographic scope of the workplace is not static and depends on the facts of each case. It claims that it depends on where the union’s members are actually working. The precise delineation of a workplace therefore is dependant upon existing facts and cannot be pre-determined. Thus, when the union asks for the JHSC to have the right to inspect a contractor’s job site, the Board would have to determine whether that job site is a workplace in which the members are working. That cannot be predetermined. Even if certain prospective orders would be within the jurisdiction of an Inspector, or the Board on appeal, the ones requested by the union in this case may not be granted as they require a determination of fact.

19. The company also argues that even if the Board could, in law, deal with this issue, it should not because the union did not give notice to any affected contractors. It points to the union’s pleadings which indicate that it cannot know which contractors are working at a particular time and that there may by upwards of 200 of them who work at Stelco Hilton Works. As the union is asking for the JHSC to audit sites and review safety reports, those contractors are potentially affected by the application and are entitled to notice.

20. The company also argues that the Act does not provide for the remedies requested. It does not provide for tours or audits, but only that the JHSC can inspect once per month.

21. The company also argues that the Inspector and the Board lack the jurisdiction to make the orders requested by the union in section 3(b) and (c)above in paragraph 16. The company refers to section 9(31) of the Act which refers to inspection of workplaces and limits JHSC involvement to critical injury and fatality cases. The committee does not have the right to investigate all accidents or near misses.

22. The company also argues that as well as the problems with prospectivity referred to above, the order requested in section 3(d) at paragraph 16 is too vague. As “inspection reports, audits and investigation reports” are not statutory terms there would be “considerable confusion about what they relate to”. The company posits that there would be considerable litigation as to whether a document falls into this category. It claims that there is no statutory basis for the request.

23. The company claims that in each case a determination will have to be made as to whether it is acting as an employer, an owner or as a constructor. That is a question of fact that cannot be predetermined. At the Hilton Works site there may at any time be many workplaces and therefore many JHSC’s. It acknowledges that there might be overlapping workplaces.

24. The company notes that the union is not left without a remedy, it can always call an Inspector if it is denied access to a location which it believes it is entitled to inspect.

25. Stelco referred to the following decisions: Camco Inc., (May 14, 1987, Hess); Stelco Inc., (January 28, 1988, File No. AP 87-19, Smith); Toronto Transit Commission, (December 12, 1996, Decision no. OHS 96-56, Bradbury); Beverley Enterprises Canada Limited, [1985] OLRB Rep April 519; General Motors of Canada, (March 5, 1996, Decision No. OHS 96-13, Palumbo).

26. The Ministry of Labour supports the company’s submissions. It submits that the Board’s powers are limited to those set out in sections 57 and 54 of the Act. It claims that in circumstances where there are contractors working and their interaction with Local 1005 members in the future is unknown, it was appropriate that the Inspector refused to make an order and gave advice to the parties instead. The Ministry agrees with the company that the JHSC’s entitlement to inspect the workplace has to be dealt with on a case by case basis and that the orders being sought are prospective. It argues that the powers of the Board are limited to the powers of an Inspector and that an Inspector cannot issue a general order to a company to comply with the Act. An Inspector’s order has to be tied to a specific contravention and in this case the appellant is not asking for an order related to a particular incident. Additionally, the Ministry submits that the union is asking the Board to issue orders that go beyond the scope of the Act. It asserts as well that, the request for “all inspection reports” was not raised with the Inspector originally and notes that an appellant cannot be aggrieved by the failure to make an order for which it did not ask.

27. The Ministry notes that the circumstances in which contractors work vary widely from contractors doing maintenance work alongside Local 1005 members to those working in a building from which Local 1005 members are excluded. It argues that the union’s remedy when its members on the JHSC are denied access to a particular area is to have an Inspector come in and decide whether it is a workplace applicable to Local 1005 members.

28. The Ministry of Labour argues that the union’s claim that it should be entitled to inspect the full Hilton Works site because its members would be affected if a contractor caused an explosion etc. is not persuasive because employees working next door to a paint factory are not entitled to inspect it. In such circumstances employees would have to call the Ministry to do the inspection.

29. The Board asked the Ministry whether, given its position that the right to inspect the workplace had to be determined on a case by case basis, it thought it could issue an order that a “policy” violated the Act if, for example, a company posted a notice that it would not allow inspections once a month. The Board asked whether the Ministry was suggesting that it would have to be called in each month to issue a separate order. The Ministry assured the Board that it such circumstances it could issue an order finding that the company had violated the Act by posting such a policy.

30. The Ministry referred to the following decisions: Ottawa Carleton Detention Centre, (June 21, 1999, File Nos. 87-98-HS and 4114-96-HS, Cummings); and General Motors, (supra).

31. The union responds that it did raise the issue of the provision of reports with the Inspector. It notes that, as the responding parties are asking that this application be dismissed for no prima facie case, the Board has to accept that all of the facts plead by the union are correct.

32. The union argues that the matter requires a factual determination and should therefore proceed. It submits that the heart of its case is that it is a violation of the Act for the company, as a matter of policy, to prohibit the union from exercising its right to inspect the workplace and to receive information concerning health and safety issues in the workplace when the company designates part of the workplace as a “ care and custody” site. The union states that its “workplace” is the one referred to in an earlier decision of the Board in this matter, i.e. the “physical premises coming within the geographic scope of the bargaining unit”.

33. The union denies that the orders it is seeking are prospective. It stated originally in its pleadings that they are prospective, but it asks the Board to amend that part of the pleadings. It asserts now that it is seeking an order about the future rights of employees based on the company’s past care and custody agreements. It contends that the company is in contravention of the Act because it is preventing the JHSC access to the workplace and from receiving information about health and safety.

34. The union denies that it is possible for Stelco to delineate sites which do not impact on its members. It argues that the workplace is an integrated whole. It notes, for example, that asbestos knows no boundaries and it therefore wants to know what is going on with asbestos at the facility. It points out that Hilton Works is a dangerous place. Employees work with gases, explosives, wastes, benzine and so on. Ingress and egress are through the same gates for all workers.

35. The union does not object to the employees of contractors inspecting other parts of the workplace. It claims that it encourages the practice as there are overlapping jurisdictions.

36. The union argues that it should not be necessary for it to complain repeatedly about the company’s refusal to allow the JHSC access to parts of the workplace and that it should be able to complain, as it has here, about the company’s policy of refusing access. The onus should not be on the union to identify sites and complain about access every time. The union needs to know whether the company can avoid the JHSC’s right to inspect the workplace by creating care and custody agreements as it purports to do.

37. The union denies that the scope of appeal is as narrow as the responding parties submit that it is. It argues that if there is an issue between the parties, as there clearly is in this case, it should be adjudicated. It claims that the Board has a slightly different role when it is issuing a new order than when it is dealing with the appeal of an order. It submits that there are two kinds of remedies it is seeking; orders that clarify a party’s rights and responsibilities and for which declaratory relief is available. However, it asserts that the main remedy it is seeking is not declaratory. It notes that it was the company’s broad response to its request to inspect a particular site that triggered the application. When one of the JHSC members tried to access that site he was told, not just that the committee could not access that site, but that it could not access care and custody sites. That left the union to complain to the Ministry of Labour that the company is violating the Act.

38. The union argues that disputing each site individually by having the inspector make a decision on each one is the least efficacious way to proceed. It provides no direction to the parties and may lead to conflicting orders.

39. The union denies that it is required to give notice to contractors as it is not seeking orders against contractors. It asserts that the company would not even have to amend its contracts if it were granted the orders it is seeking.

40. The union refers to the following decisions: Hyland v. Ontario [1991] O.J. No. 655; R v. Noranda Minerals Inc., [1994] O. J. No. 3956; Triple M Services,

(January 23, 1990, File No. AP89-77, Blair) R. v. Wyssen, 1992 CanLII 7598 (ON CA), 10 O R (3d) 193; Alcan Rolled Products Co., (April 27, 1992, Decision No. AP13/92, Wacyk) Cuddy Food Products Ltd., (September 29, 1989, File No. AP89-21, Frank) Iacovoni, (August 29, 1989, File No. AP89-43, Smith); General Motors of Canada Limited, (December 9, 1992, Decision No. AP02/93 Novick); Re Ontario Public Service Employees’ Union Local 608, [1995] O.O. H. S. A.D. Dec. No 25, (Wacyk); Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb 233; Lennon et. al. v. Ontario (Premier), 1999 CanLII 15072 (ON SC), 45 O. R. (3d) 84.

41. The company replies that the workplace is not defined in the Act as all the property that the company owns, but as the places where the employees work. The company points out that if the union’s position is correct no evidence at all would be required. However, the union is arguing that evidence is required. The company argues that the union’s real rationale for saying that notice to contractors is not necessary is that the orders are prospective and deal with contractors who may be working in the future. The proper foundation for taking this issue before the Board would be for the union to demand access to a particular site and be refused. The Inspector would be brought in and the facts put before him. If the parties’ were not satisfied with the result they could file an appeal with the Board.

Decision

42. The relevant sections of the Occupational Health and Safety Act are as follows:

43. (1) In this Act,

"constructor" means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more than one employer;

"employer" means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;

"factory" means,

(a) a building or place other than a mine, mining plant or place where homework is carried on, where,

(i) any manufacturing process or assembling in connection with the manufacturing of any goods or products is carried on,

(ii) in preparing, inspecting, manufacturing, finishing, repairing, warehousing, cleaning or adapting for hire or sale any substance, article or thing, energy is,

(A) used to work any machinery or device, or

(B) modified in any manner,

(iii) any work is performed by way of trade or for the purposes of gain in or incidental to the making of any goods, substance, article or thing or part thereof,

(iv) any work is performed by way of trade or for the purposes of gain in or incidental to the altering, demolishing, repairing, maintaining, ornamenting, finishing, storing, cleaning, washing or adapting for sale of any goods, substance, article or thing, or

(v) aircraft, locomotives or vehicles used for private or public transport are maintained,

"industrial establishment" means an office building, factory, arena, shop or office, and any land, buildings and structures appertaining thereto;

"owner" includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate;

"project" means a construction project, whether public or private, including,

(a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof,

(b) the moving of a building or structure, and

(c) any work or undertaking, or any lands or appurtenances used in connection with construction;

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

9. (2) A joint health and safety committee is required,

(a) at a workplace at which twenty or more workers are regularly employed;

(12) Unless otherwise prescribed, a constructor or employer shall ensure that at least one member of the committee representing the constructor or employer and at least one member representing workers are certified members.

(18) It is the function of a committee and it has power to,

(a) identify situations that may be a source of danger or hazard to workers;

(b) make recommendations to the constructor or employer and the workers for the improvement of the health and safety of workers;

(c) recommend to the constructor or employer and the workers the establishment, maintenance and monitoring of programs, measures and procedures respecting the health or safety of workers;

(d) obtain information from the constructor or employer respecting,

(i) the identification of potential or existing hazards of materials, processes or equipment, and

(ii) health and safety experience and work practices and standards in similar or other industries of which the constructor or employer has knowledge;

(e) obtain information from the constructor or employer concerning the conducting or taking of tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent in or about a workplace for the purpose of occupational health and safety; and

(f) be consulted about, and have a designated member representing workers be present at the beginning of, testing referred to in clause (e) conducted in or about the workplace if the designated member believes his or her presence is required to ensure that valid testing procedures are used or to ensure that the test results are valid.

(19) The members of the committee who represent workers shall designate one of them who is entitled to be present at the beginning of testing described in clause (18) (f).

(20) A constructor or employer who receives written recommendations from a committee shall respond in writing within twenty-one days.

(21) A response of a constructor or employer under subsection (20) shall contain a timetable for implementing the recommendations the constructor or employer agrees with and give reasons why the constructor or employer disagrees with any recommendations that the constructor or employer does not accept.

(22) A committee shall maintain and keep minutes of its proceedings and make the same available for examination and review by an inspector.

(23) Subject to subsection (24), the members of a committee who represent workers shall designate a member representing workers to inspect the physical condition of the workplace.

(24) If possible, the member designated under subsection (23) shall be a certified member.

(25) The members of a committee are not required to designate the same member to perform all inspections or to perform all of a particular inspection.

(26) Unless otherwise required by the regulations or by an order by an inspector, a member designated under subsection (23) shall inspect the physical condition of the workplace at least once a month.

(27) If it is not practical to inspect the workplace at least once a month, the member designated under subsection (23) shall inspect the physical condition of the workplace at least once a year, inspecting at least a part of the workplace in each month.

(28) The inspection required by subsection (27) shall be undertaken in accordance with a schedule established by the committee.

(29) The constructor, employer and the workers shall provide a member designated under subsection (23) with such information and assistance as the member may require for the purpose of carrying out an inspection of the workplace.

(30) The member shall inform the committee of situations that may be a source of danger or hazard to workers and the committee shall consider such information within a reasonable period of time.

(31) The members of a committee who represent workers shall designate one or more such members to investigate cases where a worker is killed or critically injured at a workplace from any cause and one of those members may, subject to subsection 51 (2), inspect the place where the accident occurred and any machine, device or thing, and shall report his or her findings to a Director and to the committee.

(32) A constructor or an employer required to establish a committee under this section shall post and keep posted at the workplace the names and work locations of the committee members in a conspicuous place or places where they are most likely to come to the attention of the workers.

(33) A committee shall meet at least once every three months at the workplace and may be required to meet by order of the Minister.

(34) A member of a committee is entitled to,

(a) one hour or such longer period of time as the committee determines is necessary to prepare for each committee meeting;

(b) such time as is necessary to attend meetings of the committee; and

(c) such time as is necessary to carry out the member's duties under subsections (26), (27) and (31).

(35) A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member's employer shall pay the member for those times at the member's regular or premium rate as may be proper.

(36) A member of a committee shall be deemed to be at work while the member is fulfilling the requirements for becoming certified by the Workplace Safety and Insurance Board and the member's employer shall pay the member for the time spent at the member's regular or premium rate as may be proper.

(37) Subsection (36) does not apply with respect to workers who are paid by the Workplace Safety and Insurance Board for the time spent fulfilling the requirements for becoming certified.

(38) Any committee of a like nature to a committee established under this section in existence in a workplace under the provisions of a collective agreement or other agreement or arrangement between a constructor or an employer and the workers has, in addition to its functions and powers under the provisions of the collective agreement or other agreement or arrangement, the functions and powers conferred upon a committee by this section.

(39) Where a dispute arises as to the application of subsection (2), or the compliance or purported compliance therewith by a constructor or an employer, the dispute shall be decided by the Minister after consulting the constructor or the employer and the workers or the trade union or trade unions representing the workers.

25. (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;

(e) afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions;

(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; and

(m) advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make available to them on request copies of the portions of the report that concern occupational health and safety.

29. (1) The owner of a workplace that is not a project shall,

(a) ensure that,

(i) such facilities as are prescribed are provided,

(ii) any facilities prescribed to be provided are maintained as prescribed,

(iii) the workplace complies with the regulations, and

(iv) no workplace is constructed, developed, reconstructed, altered or added to except in compliance with this Act and the regulations; and

(b) where so prescribed, furnish to a Director any drawings, plans or specifications of any workplace as prescribed.

(3) Where so prescribed, an owner or employer shall,

(a) not begin any construction, development, reconstruction, alteration, addition or installation to or in a workplace until the drawings, layout and specifications thereof and any alterations thereto have been filed with the Ministry for review by an engineer of the Ministry for compliance with this Act and the regulations; and

(b) keep a copy of the drawings as reviewed in a convenient location at or near the workplace and such drawings shall be produced by the owner or employer upon the request of an inspector for his or her examination and inspection.

(4) An engineer of the Ministry may require the drawings, layout and specifications to be supplemented by the owner or employer with additional information.

(5) Fees as prescribed for the filing and review of drawings, layout or specifications shall become due and payable by the owner or employer upon filing.

30. (1) Before beginning a project, the owner shall determine whether any designated substances are present at the project site and shall prepare a list of all designated substances that are present at the site.

(2) If any work on a project is tendered, the person issuing the tenders shall include, as part of the tendering information, a copy of the list referred to in subsection (1).

(3) An owner shall ensure that a prospective constructor of a project on the owner's property has received a copy of the list referred to in subsection (1) before entering into a binding contract with the constructor.

(4) The constructor for a project shall ensure that each prospective contractor and subcontractor for the project has received a copy of the list referred to in subsection (1) before the prospective contractor or subcontractor enters into a binding contract for the supply of work on the project.

(5) An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1).

(6) A constructor who fails to comply with this section is liable to every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that was on the list prepared under subsection (1).

33. (1) Where a biological, chemical or physical agent or combination of such agents is used or intended to be used in the workplace and its presence in the workplace or the manner of its use is in the opinion of a Director likely to endanger the health of a worker, the Director shall by notice in writing to the employer order that the use, intended use, presence or manner of use be,

(a) prohibited;

(b) limited or restricted in such manner as the Director specifies; or

(c) subject to such conditions regarding administrative control, work practices, engineering control and time limits for compliance as the Director specifies.

(3) The employer shall provide a copy of an order made under subsection (1) to the committee, health and safety representative and trade union, if any, and shall cause a copy of the order to be posted in a conspicuous place in the workplace where it is most likely to come to the attention of the workers who may be affected by the use, presence or intended use of the biological, chemical or physical agent or combination of agents.

36. (1) An employer shall make or cause to be made and shall maintain an inventory of all hazardous materials and all hazardous physical agents that are present in the workplace.

(2) The inventory required by subsection (1),

(a) shall contain such information as may be prescribed; and

(b) shall be prepared in consultation with the committee or health and safety representative, if any, for the workplace or with a worker selected by the workers to represent them, if there is no committee or health and safety representative.

37. (1) An employer,

(a) shall ensure that all hazardous materials present in the workplace are identified in the prescribed manner;

(b) shall obtain or prepare, as may be prescribed, an unexpired material safety data sheet for all hazardous materials present in the workplace; and

(c) shall ensure that the identification required by clause (a) and material safety data sheets required by clause (b) are available in English and such other languages as may be prescribed.

(2) No person shall remove or deface the identification described in clause (1) (a) for a hazardous material.

(3) An employer shall ensure that a hazardous material is not used, handled or stored at a workplace unless the prescribed requirements concerning identification, material safety data sheets and worker instruction and training are met.

38. (1) A copy of the most recent version of the inventory and of every unexpired material safety data sheet required by this Part in respect of hazardous materials in a workplace shall be,

(a) made available by the employer in the workplace in such a manner as to allow examination by the workers;

(b) furnished by the employer to the committee or health and safety representative, if any, for the workplace or to a worker selected by the workers to represent them, if there is no committee or health and safety representative;

(c) furnished by the employer on request or if so prescribed to the medical officer of health of the health unit in which the workplace is located;

(d) furnished by the employer on request or if so prescribed to the fire department which serves the location in which the workplace is located; and

(e) filed by the employer with a Director on request or if so prescribed.

(5) In addition to the requirements imposed under subsection (1), a copy of every material safety data sheet required by subsection (1) shall be made available by the employer in the workplace in such a manner that it is readily accessible by all workers who may be exposed to the hazardous material to which it relates.

43. (3) A worker may refuse to work or do particular work where he or she has reason to believe that,

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

45. (1) A certified member who has reason to believe that dangerous circumstances exist at a workplace may request that a supervisor investigate the matter and the supervisor shall promptly do so in the presence of the certified member.

(2) The certified member may request that a second certified member representing the other workplace party investigate the matter if the first certified member has reason to believe that dangerous circumstances continue after the supervisor's investigation and remedial actions, if any.

(3) The second certified member shall promptly investigate the matter in the presence of the first certified member.

(4) If both certified members find that the dangerous circumstances exist, the certified members may direct the constructor or employer to stop the work or to stop the use of any part of a workplace or of any equipment, machine, device, article or thing.

46. (1) A certified member at a workplace or an inspector who has reason to believe that the procedure for stopping work set out in section 45 will not be sufficient to protect a constructor's or employer's workers at the workplace from serious risk to their health or safety may apply to the Board for a declaration or recommendation described in subsection (5), or both.

47. (1) A certified member who receives a complaint that dangerous circumstances exist is entitled to investigate the complaint.

48. (1) Where an inspector finds that a provision of this Act or the regulations is being contravened, the inspector may order, orally or in writing, the owner, constructor, licensee, employer, or person whom he or she believes to be in charge of a workplace or the person whom the inspector believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies.

(2) Where an inspector makes an oral order under subsection (1), the inspector shall confirm the order in writing before leaving the workplace.

61. (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order.

(5) In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector.

43. There are many other sections of the Act in which the word “workplace” appears. However, the Act does not specifically address the right or obligation of Joint Health and Safety Committees in industrial establishments to inspect parts of their workplace where employees of contractors may be working. Furthermore, it appears that the only decision in which an Adjudicator has been asked to determine what constitutes a "workplace” under the Act was with respect to federal air ambulances in which provincial employees were working (see Re Ontario Public Service Employees’ Union, supra). The lack of litigation on this point may reflect the fact that the definition of “workplace” in the Act is extremely broad. Furthermore, the Act is remedial legislation which is to be given a broad and liberal construction. The answer to the question “what is the workplace” in most circumstances may therefore be obvious. However, the Inspector in this case, decided that the “workplace” for the union’s members could be something less than the company’s “workplace” or something less than the geographic scope of their collective agreement i.e. the “Hilton Works”. He also appears to have decided that the decision of what the workplace is, which is subject to inspections the JHSC is a matter within the discretion of the company subject to a complaint by the JHSC to the Ministry. He does not appear to have considered whether such a determination might be one the JHSC itself is entitled to make.

44. By determining that the JHSC’s right to inspect parts of the Hilton Works must be decided on a “case by case” basis by the company, he has accepted its policy in that regard. The union claims that that policy is a violation of the Act as it interferes with the JHSC’s right to inspect. The Board finds that there is an arguable case that the company’s policy is a violation of the Act as it purports to prohibit the JHSC from inspecting what the union considers to be the “workplace”. Furthermore, the union has an arguable case that “Hilton Works” is the workplace. There is, therefore, a decision by an Inspector which is subject to appeal by the union The Board therefore finds that there is a prima facie case for a breach of the Act.

45. However, most of the objections made by the company and the Ministry of Labour are with respect to the remedies sought in the application. In essence, they are arguing that if the remedies sought are not within the Board’s powers, the matter should not proceed even if there is an outstanding issue with respect to a violation of the Act. If that is what the parties are suggesting, the Board rejects the proposition that the tail should wag the dog in that way. There is a real issue with respect to an alleged violation of the Act to be determined. The appellant is “aggrieved” by the determination that the company’s policy of limiting the locations which the JHSC can inspect does not violate the Act. The Board considers it appropriate to decide first whether the policy is or is not a violation of the Act to determine what remedies, if any, should be ordered. At that point, the Board will consider the parties’ submissions and my jurisdiction to make the remedies requested.

46. The company and the Ministry of Labour also argue that the union should have given notice of this application to all of the contractors that work, or may work, at the Hilton Works. The Board does not consider that to be necessary, at least at this stage of the proceedings. The issue before me at this point is what is the “workplace” of the applicant’s members for the purposes of the Act. The contractors have no legal interest in that determination. It is possible that the contractors may have some interest in the remedies sought but that would depend on the contractual relationship they have with the company. Therefore, if the proceedings reach the point where I am considering a remedy I will consider whether any notice is required to anyone at that time.

47. As noted above, this issue does not appear to have been determined by any Adjudicator, or by the Board, and it raises some interesting legal questions. For example, the Act places various other obligations or rights upon parties that are defined by “workplace” e g. the need to provide information about certain substances in the “workplace”. In those circumstances could the workplace of the JHSC be smaller than the employer’s? Would the JHSC not be entitled to information about dangerous substances being used by a contractor? On the other hand does the Act contemplate a more limited right to inspect that would apply in these circumstances? Can the company decide based on its assessment of the dangers to the union’s members when the committee is entitled to access? Does the fact that the Act imposes certain requirements on constructors, owners, employers and unions mean that where construction work or construction projects are taking place, other parties have no rights or obligations that extend to that location?

48. The Board and the parties will also have to decide whether it is necessary to call evidence. It is not clear that it would be necessary to call evidence to make the legal argument that the workplace is the geographic scope as set out in the collective agreement. If that argument fails, i.e. if it is possible for the company to limit the workplace for the union’s members through contractual arrangements with a third party, then it may be necessary for the company to call evidence showing that its arrangements have achieved that effect. The union will want to call evidence showing that those arrangements have not had that effect and/or that in any case, the nature of this workplace make it impossible to isolate a certain location and to also protect the safety of its members.

49. Interesting as it would be to consider the above questions, I believe that the real dispute between the parties i.e. what access and information the JHSC is entitled to in areas where contractors are working, is one about which they should be able to reach a practical solution that meets their needs. The Board therefore remits this file back to Labour Relations Officer Ed Hunt to assist the parties in reaching a settlement. Officer Hunt should advise me by May 26, 2000 as to whether or not the parties have been successful in resolving their dispute. Further hearing days will be set at that time if necessary.

“Laura Trachuk”

for the Board