0992-01-HS York University, Applicant v. CUPE 1356-01 and Ministry of Labour, Responding Parties.
1177-01-HS York University, Applicant v. CUPE 1356-01 and Ministry of Labour, Responding Parties.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; August 10, 2001
This is an application pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of four orders issued by Inspector Mike Budlovsky in Field Visit No. 921653 dated May 30, 2001. The application to suspend the four orders has been assigned Board File No. 1177-01-HS. The applicant has also filed an appeal of the orders, which has been assigned Board File No. 0992-01-HS. This decision deals only with the suspension request.
The Board has received submissions with respect to the suspension request from the applicant, the Ministry of Labour on behalf of Inspector Budlovsky and from CUPE Local 1356-01 (the “union”), which is the certified bargaining agent representing employees affected by the orders. Having reviewed the various submissions, it would appear that the applicant and the union have had on-going discussions concerning health and safety issues relating to security services. The concerns expressed by security staff were that they were regularly placed in situations in which there was a potential for violence and they had not received adequate training nor equipment to adequately protect themselves. The Ministry of Labour was notified of these concerns and a report was prepared by Mr. Paul Eddy, a Regional Program Advisor for the Ministry of Labour, which examined the concerns put forward by the security staff. Inspector Budlovsky issued four orders, the subject matter of these applications, based upon Mr. Eddy’s report. The orders are reproduced as follows:
Order 001. Pursuant to clause 25(2)(h) of the Act that the employer shall include in its policy for security staff all options that are applicable in the “use of force” for Ontario police officers so as to include the options of “disengagement” in order to take every precaution reasonable in the circumstances for the protection of a worker employed as a security officer.
Order 002. Pursuant to clause 57(6)(a) of the Act, the employer shall prepare and submit a compliance plan specifying what will be done to comply with Order #1 (above). This order shall be complied with by the 31st of July 2001 and such compliance plan if including a schedule of dates shall be finalized as to the acceptance of said scheduled on this date.
Order 003. Pursuant to clause 25(2)(a) of the Act that the employer produces a schedule of training that ensure that all security staff will receive the same training that is consistent with the requirements of their job functions.
Order 004. Pursuant to clause 57(6)(a) of the Act, the employer shall prepare and submit a compliance plan specifying what will be done to comply with Order #003. Compliance plan including a schedule of dates shall be finalized as to the acceptance of said schedule on this date. This order shall be complied with by 31st-July-2001.
It would appear that the applicant complied with Orders 002 and 004 as it submitted the requisite compliance plans on or before July 31, 2001. The request to suspend the operation of Orders 002 and 004 is accordingly rendered moot.
In dealing with a request to suspend an order, the Board’s approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. Aug. 709:
Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:
a) whether the suspension of the order (or, alternatively, the failure to suspend the order) would endanger worker safety;
b) the prejudice to the parties if the order is or is not suspended; and
c) whether there is a strong prima facie case for a successful appeal of the order.
It is fair to say that the onus lies upon the party desiring the suspension order to establish that such an order ought to issue. Furthermore, the decision of Adjudicator Herman in General Motors of Canada Limited (File No. 3666-96-HS, decision dated June 2, 1997) stands for the proposition that a certain degree of deference must be afforded to decisions made by inspectors for the purposes of considering the suspension of these orders pending their appeal. In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order should not be suspended.
This degree of deference is enhanced when workplace safety is in issue. I refer to the comments of the Board in R.J. Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 19:
Furthermore, although the inspector's order is under appeal there is, in my opinion, a rebuttable presumption that an inspector's order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector's decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to a hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. Adjudicator Robert Herman noted in General Motors of Canada Ltd., supra, "...it is appropriate that deference be given to an Inspector's decision on an application for suspension of his or her order. In the absence of some persuasive reason to interfere with that order pending the full application for review, it ought not to be suspended." The burden of persuasiveness becomes greater, in my view, as the risk to the safety of workers increases with the suspension of the order.
The orders in dispute clearly impact upon worker safety. The applicant submits that in 2000 security officers responded to approximately 5,000 calls for services. 1,346 of these calls related to the protection of persons and property. The applicant asserts that security officers suffered very few lost time accidents in servicing these calls either in 2000 or at any time from 1997. The lack of lost time incidents does not compel the conclusion, however, that the services being performed by the security officers does not require the course of action stipulated in the orders. There could be a number of reasons for the lack of lost time accidents (including good luck) which are not relevant in assessing the potential harm to workers should the orders be suspended. The orders address training concerns so that when security officers are confronted with a violent incident they are better equipped to deal with the situation with minimal danger to themselves.
The Board is therefore satisfied that suspending the orders could endanger worker safety. Accordingly, the applicant must meet a high threshold to persuade the Board to suspend the operation of the orders pending the disposition of their appeal. The applicant claims that it will be prejudiced if the orders are not suspended as it will be required to amend and implement its standard operating procedures in relation to its security forces. While the Board recognizes a cost to the applicant in amending its standard operating procedures, it is unclear if this remains an issue in light of the applicant’s complying with orders 002 and 004.
The applicant submits that Inspector Budlovsky lacked jurisdiction to issue the orders on the basis that he had previously identified the concerns raised by the security staff as not falling within the purview of the Act but rather were in the nature of labour-management relations. The Board is not satisfied that the applicant has established a strong prima facie case for a successful appeal of the orders. That is not to say that the applicant has not raised a substantial concern regarding the authority of Inspector Budlovsky to issue the orders but that is a matter which will need to be fully addressed by the Board at a hearing.
Disposition
Having regard to the material filed by the parties, the Board is not satisfied that it should exercise its discretion under section 61(7) of the Act to suspend the operation of the orders in Field Visit No. 921653. Accordingly this application seeking the suspension of the orders is hereby dismissed.
The appeal in Board File No. 0992-01-HS is referred to the Registrar.
This panel of the Board is not seized.
“John Morgan Lewis”
for the Board