1408-00-HS Pavestone Plus Inc., Applicant v. Joint Health & Safety Committee, Ministry of Labour, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; September 8, 2000
This is an application under section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended (the “Act”) requesting a suspension of the Inspector’s orders pending the disposition of the appeal in Board File No. 1362-00-HS.
The applicant filed an appeal on August 14, 2000 under section 61 of the Act with respect to the orders no. 1 through 4 in Field Visit No. 997618 made by Inspector Richard Den Bok on July 28, 2000.
The orders under appeal were issued following a fatality of a worker at the workplace. Order no. 1 requires the company to equip moving blades with a guard that prevents access to the moving parts with respect to the No. 1 mixer. Order no. 2 directs that the No. 1 mixer be shut down until the company is in compliance with order no. 1.
Order no. 3 requires the employer to provide information to workers on lockout procedures for equipment. Order no. 4 deals with lock-out mechanisms and the employer’s responsibility to ensure that workers lock-out the equipment.
The Ministry and the Inspector oppose the suspension of these orders citing extreme danger to the workers if the company operates the mixer without properly fastening guards and without proper lockout.
It is the employer’s position that the orders are redundant and not relevant to the accident. Further the employer asserts the suspension of the orders will not compromise the health and safety of the workers. The employer takes the position that it will succeed on its appeal as the orders are redundant and irrelevant. It is the company’s view that the accident resulted from the worker’s failure to follow the company’s lock-out procedures which he was trained on and which he had done on previous occasions. The company submits there is a training program in place and there are guards in place on mixer No. 1.
There is nothing in the employer’s submissions to suggest there is any actual prejudice to the employer if these orders are not suspended.
The Joint Health and Safety Committee (the “Committee”) takes the position that suspending order nos. 1 and no. 2 will not risk the worker’s health and safety. The Committee submits the mixer must be locked out to ensure that it cannot be started while the blades are exposed. The guard must be removed to gain access to the mixer for cleaning purposes.
The Committee appears to take no position with respect to the suspension of order no. 3 other than retraining is beneficial in any setting and while this order is common sense and not necessary it is a legitimate order to ensure that retraining is done.
The Committee’s position with respect to order no. 4 is that it does not provide any value to the lock-out system and the training of the workers. The committee supports the appeal of this order.
Decision
The orders under appeal were issued after a fatal accident at the work place. A worker was killed while cleaning out mixer No. 1. The lock-out procedure apparently was not put in place and when the power came back on, after a weather related power loss, this mixer was activated pinning the worker inside the mixer.
The employer and the safety committee suggest that had the worker followed proper procedures this accident would not have happened and that the Inspector’s orders are not necessary as safety mechanisms are in place and there is ongoing safety training. There is no suggestions of any actual prejudice to the employer if these orders are not suspended pending the determination of the appeal of the orders.
The Board in R.J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at 87 stated as follows:
….although the inspector’s order is under appeal there is, in my opinion, a rebuttal presumption that an inspector’s order is authorized by the OSHA and is correct. An inspector has the statutory duty to administer and enforce the OSHA. An inspector’s decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. …
The applicant has not demonstrated compelling grounds that would cause the Board to suspend the operation of the orders under appeal. This is especially the case where the orders arose in the context of a fatality. This decision does not address whether or not the inspector’s orders were correct. That is a matter to be determined when the merits of the appeal are heard.
In the circumstances where there is no actual prejudice pleaded by the employer and where there is the possible risk of injury to workers, the Board is not persuaded to suspend the Inspector’s orders. The applicant has not provided persuasive reasons to suspend the orders pending a hearing on the merits of the appeal.
DISPOSITION
- This application for suspension of orders nos. 1, 2, 3 and 4 issued by Inspector Den Bok in Field Visit No. 997618 dated July 28, 2000 is dismissed.
“Inge M. Stamp”
for the Board