3608-98-HS Sudbury Mine, Mill & Smelter Workers’ Union Local 598/CAW and Moe Durocher, Appellants v. Craig Mines, Falconbridge Ltd. and Ministry of Labour and Inspector R. Kulyski, Responding Parties.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Moe Durocher and Ernie Taylor for the appellants; Doug Hamilton, John Chenier and Mike Siemer for Falconbridge; Stephen Mason and Rick Kulyski for the Ministry of Labour.
DECISION OF THE BOARD; March 30, 2000
1On February 25, 1999, in response to a complaint from the union members of the Joint Health and Safety Committee (“JHSC”) the Inspector made a decision that the lighting on underground personnel vehicles was adequate and declined to make an order. This is an appeal of that decision under section 61 of the Occupational Health and Safety Act (the “Act”).
2The relevant facts are as follows. The responding party Falconbridge Ltd. (referred to as the “company”) had a standing order in place since 1995 which required that strobe lights be mounted on the front and rear of “man carriers and personal vehicles” when used underground. In the fall of 1998, the company acquired some new service trucks. At the November, 1998, meeting of the JHSC the issue was raised that the new trucks were not in compliance with the standing order. The committee recommended that the trucks be brought into compliance within two weeks. The company responded two days later with a new standing order that required that the new trucks be retrofitted with only one strobe light on the top of the cab. The strobe lights are shielded at the back to reduce glare for the passengers. Under the new standing order, old trucks would be maintained as they were i.e. with strobe lights on both the front and rear.
3The union members of the JHSC complained to the Ministry of Labour that the lighting on the new trucks was inadequate. The Inspector attended at the workplace and the parties agreed that an ergonomist would investigate. On January 8, 1999, the Ministry’s ergonomist Peg Scherzinger, conducted tests underground comparing the new trucks with one strobe light and the old minecat tractors with two strobe lights mounted on the front and rear. She concluded that the lighting provided by the two lights on the minecats was superior.
4The appellant (referred to as the “union”) claims that prior to conducting the tests with Ms. Scherzinger, it asked the management representatives present if they would comply with her recommendations and they said that they would.
5On January 21, 1999, after receiving the ergonomist’s report, the company issued a memo that all personnel vehicles would be fitted with two strobe lights. The new trucks, which had one strobe light on the top, would have another one placed in the rear. However, the strobe light on the top would serve as the front one and would not be moved.
6On January 25, the Inspector issued his decision with respect to the complaint (i.e. whether one strobe light on the top of the vehicle was adequate lighting). He determined that the company was not in violation of the Act because the Mining Regulations only specify that head lights and tail lights are required on vehicles.
7The union appealed the Inspector’s decision. The remedy sought in the appeal is “that the Board direct the M.O.L. Inspector to issue (at the very least) an order to Falconbridge Ltd. (Craig Mine) stating that they have violated section 62(3) and section 62(5)(b) of the O.H.S.A. and it’s Regulations”. At the hearing it was determined that the union referred to section 62 because it took the position that the company had promised to return to the original standing order if the ergonomist so recommended. However, according to the union, the company had not kept this promise because it was only adding rear strobe lights and not moving the ones on the top of the cab to the front.
8The Ministry and the company argued that the issue of whether false information had been provided to the Inspector contrary to section 62 had never been put to the Inspector and that he had never decided that question. Therefore, that issue is not properly before the Board. In any case the parties assert that the facts could not support such a finding. Furthermore, as the union is only relying on section 62, the issue that was the subject of the Inspector’s decision i.e. the adequacy of lighting on personnel vehicles, is not before the Board either.
9The Ministry also takes the position that if the Board does have the jurisdiction to consider the Inspector’s decision in view of the union’s reliance upon section 62, he was correct to find that the company was in compliance with the Act because the personnel vehicles had head lights and tail lights as required by the Regulations. It argues that lighting on vehicles used in mining operations has been the subject of Regulation, and therefore section 25(2)(h) of the Act cannot be used by workers to claim that additional lighting is required to protect their health and safety. The Ministry referred to Sonterlan Construction Corporation (August 16, 1993 Dec. No. OHS 93-34, Blair). The company referred to CAW v. Iacovanni (August 25, 1989 File No. AP 89-43 Smith) and CAW v. General Motors of Canada [1996] O.O.H.S.A.D. No. 15.
Decision
10The relevant sections of the Act and Regulations are as follows:
- (2) Without limiting the strict duty imposed by subsection (1), an employer shall,
(h) take every precaution reasonable in the circumstances for the protection of a worker;
- (3) No person shall knowingly furnish an inspector with false information or neglect or refuse to furnish information required by an inspector in the exercise of his or her duties under this Act or the regulations.
(5) No person shall knowingly,
(b) furnish a committee, a committee member or a health and safety representative with false information in the exercise of a power or performance of a duty under this Act; or …
Mining Regulations
- (1) When in use, a motor vehicle, other than a motor vehicle running on rails, shall,
(c) subject to subsection (2), have headlights and tail lights
(2) In areas where natural or artificial lighting is adequate to enable
the operator to have a clear view of the areas and persons, a motor
vehicle may be operated without headlights or tail lights.
- (2) Where a motor vehicle is disabled or parked in the travelled portion of a roadway, a warning to approaching traffic shall be provided by,
(a) flashing lights;
(b) flares;
(c) reflectors;
(d) lamps; or
(e) a worker suitably equipped to be readily seen, who directs traffic approaching the area.
11As the Board noted at the hearing, the real outstanding health and safety issue between the union and the company is whether trucks with strobe lights mounted on the top and rear are as safe as trucks with strobe lights mounted on the front and rear. As no testing has been done to compare the light cast by those two lighting systems the Board could not decide that issue, even if it has the jurisdiction to do so.
12It is disturbing that instead of focussing on the real health and safety issue described above, this case has been litigated around a number of other issues. Firstly, the union, instead of asking for an order that the lighting on the trucks is inadequate asks the Board to find that the company is in violation of section 62. The Board ruled orally at the hearing that there was no violation of section 62 of the Act. The facts here do not support the claim that false information was provided to the Inspector. At most, the pleadings indicate that members of management on the JHSC made a commitment to the union members on the committee that the company would follow the ergonomist’s recommendations and that the company did not do so to the letter. The union cannot enforce such a promise by alleging that false information was provided to the Inspector.
13However, the Inspector has also distracted the parties from the real health and safety issue by his determination that, since Regulation 105(d) requires vehicles used in mining operations to have head and tail lights, they do not need to have strobe lights no matter what the parties or the Ministry’s own ergonomist has found. The Ministry bases this argument on the principle that if a matter is dealt with in the Regulations a company cannot be held to a higher standard through the use of section 25. However, that principle is only applicable if the Regulation deals specifically and completely with the statutory requirement and does not conflict with it. In this case, the issue of whether or not strobe lights are required on vehicles operating underground has not been the subject of Regulation. The Regulation just says that head and tail lights are required on vehicles used in mining operations. They do not say that no other lights could be required and cannot, and should not, be construed in such a fashion. Regulation 105 does not deal with any special requirements that might be necessary for personnel vehicles which will be left parked underground in a mine. Regulation 106(2) may refer to this situation (although no one mentioned it at the hearing) but that Regulation does require additional lighting. It appears that the parties in this case have agreed for years that strobe lights are the best method of ensuring safety in these circumstances. Therefore, if the company had not agreed to use any strobe lights (and to its credit it never argued that only head and tail lights were necessary) I might have found that two strobe lights were required in view of the ergonomist’s report and the parties’ past practice. However, as noted above, I am not able to determine whether strobe lights on top and rear are insufficient in comparison with strobe lights mounted on the front and rear without comparison testing being done.
DISPOSITION
14The company has not violated of section 62 of the Act. Furthermore, the company has agreed to use two strobe lights on personnel vehicles underground and there is no evidence, at least at this time, that mounting them on the top and rear of the vehicle provides inadequate lighting. This appeal is therefore dismissed.
“Laura Trachuk”
for the Board