1779-00-HS Falconbridge Limited, Applicant v. Sudbury Mine, Mill & Smelter Workers’ Union, Local 598/C.A.W., Rick Kulyski, Inspector and Ministry of Labour, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; October 12, 2000
This is a request for the suspension of an order made by an Inspector pursuant to the Occupational Health and Safety Act (the “Act”). The order was made pursuant to section 9(2)(a) which reads as follows:
(1) …
(2) A joint health and safety committee is required,
(a) at a workplace at which twenty or more workers are regularly employed;
The employees in the production and maintenance bargaining unit at Falconbridge Limited's smelter (the SBBU) are on strike. Production work in the plant is being performed by others, including managers, retired employees and contractors. On August 25, 2000 the Inspector ordered Falconbridge to establish a joint health and safety committee. The Inspector set a compliance date of September 1, 2000.
Falconbridge has appealed the order, and seeks suspension of it pending the appeal. The Inspector, as represented by the Ministry of Labour, opposes the suspension, as does the Sudbury, Mine, Mill and Smelter Workers’ Union, the trade union representing the striking employees.
Falconbridge submits that worker safety can be protected during the suspension through the continued working of the joint health and safety committee which is in place and functioning for the Office, Clerical and Technical employees and through the Safety Audit Committee that Falconbridge has implemented at the SBBU during the strike. It submits that a refusal to suspend the order would have a negative effect on the workplace because work during the strike has been carried on in a co-operative way and creating divisions among management staff could result in long term rifts. Falconbridge is also concerned that creating a joint health and safety committee that included contract staff would give rights to those persons that they would not normally have in the workplace.
At the heart of the matter, Falconbridge asserts that the order is unclear:
Further, the Order is unclear and, as a result, Falconbridge is uncertain how to comply with it. It is not clear whether the Order requires a JHSC for the P&M workers, for the management staff working at the site or for the contract workers. It is also not clear how such committees would be formed (for example, how do you have a “joint” committee with management workers?). As a result, if the Board does not suspend the Order, Falconbrige is exposed to prosecution even if it attempts to comply with the Order. This would be unfair, unreasonable and prejudicial.
With respect to that issue, counsel for the Inspector writes that with knowledge of the context, the order is clear; the Inspector is ordering that the replacement workers, whoever they might be, be represented on the joint health and safety committee for the production and maintenance area of the SBBU. Counsel also expresses surprise that the employer asserts the order is not clear, because Falconbridge filed a timely Notice of Compliance, listing the worker and management representatives on the joint health and safety committee for the SBBU. And because the employer has filed a Notice of Compliance, the Inspector has seen no reason to seek to enforce the order. Counsel for the Inspector wrote that the Inspector telephoned one of the co-chairs of the committee who confirmed that Falconbridge was complying with the order.
The employer has raised interesting issues; it is not at all clear to me that the Act contemplates what to do when the worker members of the joint health and safety committee are not present due to a labour dispute. Even more problematic is how to meet the obligations in section 9(2) when replacement workers are in the workplace. No doubt, the appeal hearing will deal with these issues.
However, I am not convinced that it is necessary for me to suspend the order at this time, nor to decide if the employer has established that the order should be suspended. At this time, the Inspector is satisfied that the employer is complying with the order. There seems little point in determining whether to suspend an order whose compliance is satisfactory to the Inspector.
Should those facts change, then the employer may revive its request for a suspension, on delivering a letter to all parties, and filing it with the Board.
If such a request is made, the Registrar is directed to place the matter before this panel of the Board, if convenient.
“Mary Ellen Cummings”
for the Board