1348-99-HS; 1349-99-HS Schlumberger Canada Limited, Applicant v. Ministry of Labour, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Michael Horan, Lane Brennan and Steve Dramwitzke appearing on behalf of the applicant; Bruce Arnott and Don Frenette appearing on behalf of the Ministry of Labour.
DECISION OF THE BOARD; September 25, 2000
- Board File No. 1348-99-HS is an appeal of an order (No. 883609) of a Health and Safety Inspector (“the inspector”). Board File No. 1349-99-HS deals with the suspension of the order.
Background
Order No. 883609 contains five discrete parts. Two of these relate to O. Reg. 213/91. At the hearing of this matter on February 23 and 24, 2000, the applicant indicated it was not pursuing an appeal of these parts of the order.
The remaining three parts of the order consists of a determination that an individual violated subsection 1(2) of O. Reg. 784/93 (“Reg. 784/93) made pursuant to the Occupational Health and Safety Act, R.S.O., 1990, c. O.1, as amended, (“the OHSA”); a determination that the applicant violated subsection 1(3) of Reg. 784/93; and thirdly, a determination that the applicant also violated subsection 23(1) of the OHSA.
The inspector determined that an independent contractor, Leonard Kingston (“Mr. Kingston”), who provided services on behalf of the applicant (also referred to as “Schlumberger”), installed a water meter in a residence in the City of Niagara Falls, and that Mr. Kingston was not a certified plumber or an apprentice plumber. In the inspector’s view, the installation of water meters was work that fell within the parameters of the plumber trade.
Mr. Kingston did not appeal that portion of the order made against him personally. Accordingly, what remains to be determined is whether or not Schlumberger violated Reg. 748/93 and subsection 23(1) of the OHSA.
Subsections 1(2) and (3) of Reg. 784/93 provide as follows:
1(2) No worker in a trade set out in the Schedule, other than an apprentice as defined in section 1 of the Trades Qualification Act, shall carry out any work in that trade unless the worker holds a subsisting certificate of qualification in that trade.
(3) Every employer who employs a worker in a trade set out in the Schedule, other than an apprentice as defined in section 1 of the Trades Qualification Act, shall ensure that the worker holds a subsisting certificate of qualification in that trade.
The Schedule referred to in the above-noted subsections lists 17 trades, one of which is identified as "Plumber".
Section 23(1) of the OHSA provides:
(1) A constructor shall ensure, on a project undertaken by the constructor that,
(a) the measures and procedures prescribed by this Act and the regulations are carried out on the project;
(b) every employer and every worker performing work on the project complies with this Act and the regulations; and
(c) the health and safety of workers on the project is protected.
- The aspects of the order pertaining to Reg. 784/93 were suspended by decisions of the Board dated August 31, 1999, September 3, 1999 and February 25, 2000.
Issues
- The issues in this matter are best illustrated by setting out the framework of the applicant’s case, which was argued as follows:
(i) The work of installing water meters is authorized by subsection 50(1) of the Public Utilities Act, R.S.O. 1990, c. P. 52 (referred to hereinafter as “the Public Utilities Act” or “the PUA”). Pursuant to subsection 50(1), public utilities may authorize persons who are not apprentices or who do not hold certificates of qualification in the plumber trade (“non-certified workers”) to install water meters. The applicant’s use of non-certified workers to install water meters was therefore lawful;
(ii) In any event, the installation of water meters does not fall within the definition of “plumber” contained in section 1 of R.R.O. 1990, Regulation 1073 (“Reg. 1073”), made pursuant to the Trades Qualification and Apprenticeship Act, R.S.O. 1990, c.T.17, as amended (referred to hereinafter as “the Trades Qualification and Apprenticeship Act” or “the TQA Act”) . Consequently Reg. 784/93 has no application to the installation of water meters;
(iii) In there is any conflict between the PUA and Reg. 784/93 concerning the issue of whether or not non-certified workers may perform water meter installation work, the PUA must prevail.
The evidence
There was little dispute with respect to the material facts in this case.
The parties submitted an agreed statement of facts, which was supplemented by the evidence of several witnesses. The text of the agreed statement of facts provides as follows:
The Applicant is a corporation incorporated pursuant to the laws of the Province of Ontario. It is a distributor of utility (gas, water and electricity) meters. The Applicant also installs, replaces, repairs and tests utility meters. The Applicant has 138 employees and utilizes the services of approximately 89 independent contractors in Ontario.
On or about February 6, 1999, the Council of the City of Niagara Falls approved a plan to install approximately 22,150 water meters and replace approximately 3,000 water meters within the geographic area of the City of Niagara Falls. The installation of water meters on all residences in a municipality is commonly referred to as “Universal Metering”.
Given the large number of water meters that were to be installed pursuant to Universal Metering, the City of Niagara Falls (the “City”) was unable, within the required time period, to perform the installations using its own employees. As such, on or about March 9, 1999, the City invited tenders for the work of installing the water meters.
In March, 1999, the City awarded the Applicant the contract for “Supply and Installation of Water Meters” in respect of approximately 25,000 water meters in the City (the “Contract”). The value of the Contract was approximately $4.5 million.
The Contract does not require that the person installing the water meters be apprentice plumbers or certified plumbers.
The Applicant has extensive experience in the installation of water meters on residential and commercial properties. In the past eleven years, the Applicant has installed, replaced, tested and repaired approximately 375,000 water meters in Ontario, more than any contractor or utility in Ontario.
The Applicant commenced installation of water meters pursuant to the Contract on or abut June 1, 1999. At that time, approximately 6 employees of the Applicant and 25 independent contractors were engaged installing the water meters (the “Workers”).
8.. The Applicant pays the Workers on the basis of an amount for each water meter installed or replaced. The Worker receives a base fee of $23.00 for each new residential installation and $14.00 for each residential meter replacement.
The Applicant trains the Workers in the installation of water meters. The training includes one day of in-class training, and a minimum one day of accompanying a trained meter installer. The workers are trained on water meters, safety procedures, customer service, the installation of water meters, and how to ensure that the water meters are installed correctly so that they accurately measure water usage in the long-term.
The details of the work of installing water meters for Universal Metering are as follows: the worker enters the building, closes the main water valve into the building or in the building, accesses the water pipe on which the meter will be placed, cuts the pipe, installs water meter fasteners to the pipe, installs the meter on the pipe, ensures the meter is properly grounded, opens the main water valve, and checks for water leaks around the water meter.
On average, it take a Worker 90 minutes (including time for travelling and paper work) to complete the installation.
On average, a Worker can install 4 to 5 water meters in one eight-hour working day.
13 .At all material times, Leonard Kingston was an independent contractor engaged by the Applicant. He received the training set out in paragraph [sic]
On or about July 22, 1999, Mr. Kingston was installing water meters in the City, pursuant to the Contract.
On July 22, 1999, Ministry of Labour inspector Don Frenette issued an Order to the Applicant requiring that every worker in a “compulsory trade” holds a certificate of qualification in a compulsory trade, and requiring that the Applicant provide proof of qualification for Mr. Kingston as a plumber to Inspector Frenette.
Also on July 22, 1999, Inspector Frenette issued an Order to Mr. Kingston requiring Mr. Kingston, as a worker, to ensure that he is an apprentice or holds a certificate of qualification in a compulsory trade, and requiring Mr. Kingston to provide proof of apprenticeship or certification of qualifications as a plumber to Inspector Frenette.
By way of a Decision of the Board, dated August 31, 1999, the Orders were suspended. The Ministry of Labour did not oppose the Applicant’s Application for suspension of the Orders.
The Applicant expects that the installation of the water meters pursuant to the Contract will be substantially completed on or about May 31, 2000.
Evidence tendered through oral testimony established the following additional facts.
The sole purpose of a water meter in a water distribution system is to measure the amount of water passing through the system, so as to enable the supplier to accurately bill the user of the water.
The applicant’s water-meter installation workforce (hereinafter referred to as “meter installers”) consists of technicians with mechanical aptitude, and certified plumbers, the latter comprising as much as twenty per cent of all the applicant’s meter installers. With one exception, the applicant’s municipal customers do not specify any mandatory trades designation for the applicant’s meter installers.
Every job applicant for the position of meter installer must pass three stages of training given by Schlumberger. As indicated above, the in-class training is for a period of one day. The oral evidence was that the in-class training consists of classroom instruction (including a segment on health and safety) and “bench testing”, the latter being physical demonstrations of mechanical aptitude by the trainee. The field training, which is a minimum of one day, consists of close supervision of the trainee by an experienced meter installer at each step of the installation process. The field training includes the explanation of various scenarios, including hazard awareness, and the tutoring and coaching of the trainee by the experienced meter installer.
Typical hazards associated with water meter installation include slips, falls and lifting injuries. There are also burn hazards associated with the soldering of copper pipe (the company provides burn pads, which protect against the open flame torches used in the soldering process, as well as extinguishers), and the potential for exposure to acid-based compounds used to facilitate the proper fitting of pipe joints. It was acknowledged that water pipes are at times subject to substantial water pressure. There was no evidence of any actual incidents or injuries resulting from the sudden release of water pressure. In any event, the hazard posed by high water pressure is alleviated when a tap or faucet in the water distribution system is left open while the main water valve is opened slowly (this technique is covered in the training program of plumber apprentices discussed in paragraph 17 below). Finally, residential water meters are typically required to be grounded. There is a risk, albeit fairly remote, of electrical shock in the event of electrical current travelling along the water pipes of an improperly wired building. There was no evidence led of any instance in which a water meter installer had received an electrical shock during a water meter installation. In any event, the company trains the workers on the use of jumper cables to eliminate the risk of electrical shock.
The designation of certified plumber requires successful completion of a five year (9,000 hours) program of academic learning (also referred to as “in-school training”) and practical work experience. Safety training is an integral and significant part of both components of the program. Out of the total academic learning, about seven hours are spent teaching plumbing apprentices about water meters, including meter types, selection and installation, testing and electrical grounding. The installation and testing of water meters is also a mandatory part of an apprentice’s work experience training.
Decision
As his starting point in argument, counsel for the applicant relied upon a combination of subsection 50(1) of the PUA, section 194 (9) of the Municipal Act, R.S.O. 1990, c.M. 45 and subsection 7.6.1.3(5) of the Reg. 403/97 made pursuant to the Building Code Act, 1992, S.O. 1992, c.23. The applicable statutory provisions are set out below.
Subsection 50(1) of the Public Utilities Act states:
50.-(1) Any person authorized by the corporation for that purpose has free access, at all reasonable times, and upon reasonable notice given and request made, to all parts of every building or other premises to which any public utility is supplied for the purpose of inspecting or repairing, or of altering or disconnecting any service pipe, wire or rod, within or without the building, or for placing meters upon any service pipe or connection within or without the building as he or she considers expedient and for that purpose or for the purpose of protecting or regulating the use of the meter, may set it or alter the position of it, or of any pipe, wire, rod, connection or tap, and may alter or disconnect any service pipe.
- Subsection 194(9) of the Municipal Act states:
194(9) Subject to any court order under this section, a municipality may enter upon any land to repair and maintain its public utilities.
- Subsection 7.6.1.3(5) of O. Reg. 403/97 states:
Where the water supply is to be metered, the installation of the meter, including the piping that is part of the meter installation and the valving arrangement for the meter installation, shall be according to the water purveyor’s requirements.
Counsel for Schlumberger argued that subsection 194(9) of the Municipal Act is the provision that authorizes a municipality of public utility to gain access onto any premises for the purpose of repairing utilities. Counsel contended that subsection 50(1) of the PUA, on the other hand, is more than an access provision, that it specifically authorizes the performance of placing meters on any service pipe by any person authorized by the municipality or public utility to do so. Counsel also referred to O. Reg. 403/97 (“Reg. 403/97”) under the Building Code Act, 1992, which stipulates in subsection 7.6.1.3(5) that where a water supply is to be metered, the meter installation shall be according to the water purveyor’s requirements. Counsel argued that since the water purveyor in the instant case (the City of Niagara Falls) had not required the use of certified plumbers or apprentices to install the water meters, it was inferentially authorizing non-certified workers to undertake the installation.
I prefer counsel for the Ministry of Labour’s argument that the PUA has no application in this case. Subsection 194(9) of the Municipal Act is the municipality’s authority to enter upon land. Subsection 50(1) of the PUA is the statutory authority for the representative individuals of municipalities or public utilities to have access to buildings and premises for specific purposes. The authorization under subsection 50(1) of the PUA clearly has nothing to do with the qualifications of a person who, as the municipality’s or public utility’s representative, and by virtue of the subsection, is entitled to have access to buildings or premises. Subsection 50(1) is an access provision, for the narrow purposes enunciated therein. Even more clearly, the use of the term “requirements” in subsection 7.6.3.1(5) of O. Reg. 403/97 under the Building Code Act, 1992, cannot reasonably be interpreted to include a right of the water purveyor to set qualifications of water meter installers. The use of the term “requirements” refers to the physical specifications of the installation, such as the size of piping or the configuration of the valves. It would be rather extraordinary to conclude that a regulation of this kind confers authority on a water purveyor to determine job qualifications. At the very least, one would expect to see very clear language to that effect, which is not the case here.
Given my determination that the PUA, the Municipal Act and the Building Code Act, 1992 have no application to the issues in this matter, it follows that there is no reason to deal further with the applicant’s submissions in respect of a possible conflict between the PUA and Reg. 784/93.
This leaves remaining the alternative argument of the applicant concerning the application of Reg. 1073 made pursuant to the TQA Act, and specifically the definition of “plumber” in section 1. Section 1 of Reg. 1073 reads as follows:
In this Regulation,
“certified trade” means the trade of plumbers;
“plumber” means a person who,
(a) lays out, assembles, installs, maintains or repairs in any structure, building or site, piping, fixtures and appurtenances for the supply of water for any domestic or industrial purpose or for the disposal of water that has been used for any domestic or industrial purpose,
(b) connects to piping any appliance that uses water supplied to it or disposes of waste,
(c) installs the piping for any process, including the conveyance of gas, or any tubing for a pneumatic or air-handling system,
(d) makes joints in piping, or
(e) reads and understands design drawings, manufacturers’ literature and installation diagrams for piping and appliances connected thereto,
but does not include a person engaged in,
(f) the manufacturer of equipment or the assembly of a unit prior to delivery to a building, structure or site,
(g) the laying of metallic or non-metallic pipe into trenches to form sanitary or storm sewers, drains or water mains, or
(h) the repair and maintenance of the installation in an operating industrial plant.
Counsel for the applicant argued that a violation of subsections 1(2) and (3) of Reg. 784/93 must be premised on a finding that the installation of water meters comes within one or more of paragraphs (a) through (e) of section 1 of Reg. 1073. Counsel went on to argue that paragraph (a) is the only paragraph of section 1 that can have any potential application to the instant case. In that regard, it was conceded by the applicant that water meters are “appurtenances” within the meaning of the paragraph (a) of section 1, but it was contended that they are not appurtenances “for the supply of water”, which words qualify the meaning of “appurtenances”. Counsel argued that water meters are the metaphoric cash registers of any water system. They play no role in supplying water for any domestic or industrial purpose, but rather merely monitor that supply.
I disagree with the starting point in the applicant’s analysis. The definition of the word “plumber” is not, in my view, determinative of the issues in this matter. What is of significance is whether or not the work associated with the installation of water meters is work of the certified trade of plumber. Reg. 784/93 prohibits a worker from carrying out “any work in that trade unless the worker holds a subsisting certificate of qualification in that trade”. In my view, the trade of plumber encompasses more than the activities set out in the section 1 definition of “plumber”. Regard must also be had to the combined curricula of in-school training and work experience training set out in Schedules 1 and 2 respectively of Reg. 1073. For example, Item 11 of Schedule 1 describes an in-school course in “Roughing In (Water Supply Systems”); that course includes instructions concerning water meters, their type, their selection and installation, and their electrical grounding. Similarly, in Schedule 2, item 5 identifies the same course to be covered through work instruction and experience, and it specifically mentions “installing and testing water meters”.
Counsel for the applicant cautioned against drawing inferences about the plumber trade by relying upon these curricula, particularly the in-school training. He pointed out that Schedule 1 refers to courses in mathematics, science, English and drafting, none of which could be considered the exclusive domain of the plumber trade. There is some validity to this argument. Nevertheless, I do not rely exclusively on the academic requirements set out in Schedule 1 in Reg. 1073 in concluding that water meter installation is the work of the plumber trade. Regard must also be had to Schedule 2 in Reg. 1073, which requires that an apprentice receive practical work training in the installation and testing of water meters.
Moreover, I am not convinced that the section 1 definition of “plumber” excludes the activity of water meter installation. It seems to me that a water meter can be viewed as an appurtenance for the supply of water within the meaning of paragraph (a) of section 1. Counsel for the applicant’s submission that a water meter is not used “for the supply of water” suggests that an appurtenance must in some way contribute to the supply of water. I think that is too narrow an interpretation. A water meter is a functioning part of a water system. As such it is properly viewed as an appurtenance for the supply of water.
Having regard to the evidence, and applying Reg. 1073 generally to that evidence, I conclude that the work performed by Mr. Kingston on behalf of the applicant was work of the plumber trade. As such, the inspector’s order determining that the applicant was in violation of section 1(3) of Regulation 784/93 and subsection 23(1) of the OHSA, was correctly issued. The suspension of those aspects of the inspector’s order, most recently extended by decision of the Board dated February 25, 2000, is no longer in effect. The remaining portions of the order which were not pursued on appeal are hereby confirmed.
The application is dismissed.
“Patrick Kelly”
for the Board