1166-01-HS International Association of Bridge, Structural Ornamental and Reinforcing Iron Workers, Local 765, Applicant v. Paul Daoust Construction Canada Ltd. and Ministry of Labour, Responding Party.
1232-01-HS International Brotherhood of Electrical Workers, Local 586, Applicant v. Paul Daoust Construction Canada Ltd., Fer Ornemental Lte., I.B.E.W. Local 586 and Ministry of Labour, Responding Parties.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; August 15, 2001
1This is an application pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.O-1 as amended (the “Act”) seeking the suspension of an order issued by Inspector Albert Benoit in Field Visit Number 964817 dated June 19, 2001. The application to suspend the order has been assigned Board File No. 1232-01-HS. The applicant, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 765 (the “Ironworkers”) has also filed an appeal of the order, which has been assigned Board File No. 1166-01-HS. This decision deals only with the suspension request.
2The Board has received submissions with respect to the suspension request from the Ironworkers, the Ministry of Labour on behalf of Inspector Benoit and from International Brotherhood of Electrical Workers Local 586 (the “IBEW”). The facts giving rise to the issuing of the order by Inspector Benoit appear to be as follows.
3Paul Daoust Construction Canada Ltd. (“Paul Daoust”) is the construction manager for a construction project located at the University of Ottawa. In its role as construction manager, Paul Daoust awarded the work of installing supports for electrical cable trays to a steel contractor, Fer Ornamental Gatineau Ltee., which in turn assigned the work to members of the Ironworkers. It appears that representatives of the IBEW disputed the assignment of work claiming that the work ought to be performed by electricians. Representatives of the IBEW subsequently contacted the Ministry of Labour and complained that the work included in the trade regulation governing construction electricians was being performed by persons who were not electricians. On June 19, 2001, Inspector Benoit issued an order which stipulated that brackets for the cable trays must be installed by certified electricians or registered apprentices. The result of the order is that the installation of the supports was halted and that members of the Ironworkers who have been assigned to perform the work have been unable to continue working.
4The order issued by Inspector Benoit is reproduced as follows:
Order 6. The brackets supporting the electrical cable trays shall be installed by a certified electrician or a registered apprentice employed in that trade.
5In dealing with a request to suspend on 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.
6The Ironworkers describe the work in question as the installation of miscellaneous steel in the form of brackets to support electrical brackets. As such, the Ironworkers maintain that its members are qualified to perform such duties which is recognized in Regulation 1065 of the Trades Qualification and Apprenticeship Act (the “TQAA”). The TQAA recognizes the installation of miscellaneous steel as a component of the Ironworker’s trade. The Ironworkers rely on correspondence from counsel for Paul Daoust which supports the assignment of work to the Ironworkers. Counsel for Paul Daoust describes the bracket as being structural in nature and writes as follows:
…the bracket in question is a structural [rather than electrical] component. Stamped drawings by a Structural Engineer were required. The proper fastening of these brackets are a structural requirement. Therefore, the safe installation of these brackets may be better accomplished if Ironworkers do the installation rather than electricians who do not have the same experience satisfying structural requirements.
7The Ironworkers assert that the real dispute between the parties is that of a jurisdictional dispute and not a health and safety matter arising under the Act. The Ironworkers rely on Buttcon Limited (unreported, Board File No. 0048-99-HS, June 23, 2000) in which the Board cites Ministry of Labour policy regarding the interplay between health and safety issues and jurisdictional disputes. The dispute in Buttcon Limited, supra is similar to the issues in this application: members of the Ironworkers were assigned to install hangers and brackets for communications, alarm, power and surveillance. An inspector from the Ministry of Labour ordered that electricians be assigned to perform the work. The order was rescinded on the agreement of the parties. The Board made reference to the following excerpts from the Ministry of Labour Policy regarding the TQAA which is reproduced as follows:
- PROCEDURES
3a. Inspections
TQAA compliance should be randomly audited during Health and Safety inspections. When you observe “compulsory trade” being carried out at a premise/project, identify yourself to the person doing the work, and request the worker to produce proof of certification or proof of apprenticeship registration.
Proof consists of a certificate or wallet card issued by OTAB (formerly the Ministry of Skills Development) for the trade being performed.
When determining whether a contravention falls under OTAB or MOL, the inspector should determine whether the concern is a bona fide health and safety concern or whether this is in reality an economic or political dispute. A common example of the latter would be two trades “squabbling” because each wants to be awarded work on a contract (i.e. jurisdictional dispute).
Clarification is also necessary whether an individual contravention is of a TQAA nature or is alleged as a TQAA/OTAB issue.
Many non-compulsory Trades that are certified under TQAA contain similar or same functions as do the compulsory trades… ie, Sprinkler Vs. Plumber/Fitter. We must recognize that either trade could legitimately do this job. If there is a dispute in that regard it should be dealt with as a jurisdictional matter.
Excerpt from Manual regarding Regulations under TQAA, Chapter 2
(at page 8)
NOTE
Each trade consists of a number of tasks. When a task is contained in only one compulsory trade then only a person certified or registered as an apprentice in that trade may perform the task. When a task is contained in two or more compulsory trades then persons certified or registered as an apprentice in any of the compulsory trades that contain the task may perform that task. When a task is contained in a compulsory trade and a voluntary trade then any person may perform the task without having to be certified or registered as an apprentice in any trade.
8The IBEW asserts that the work in question is not miscellaneous steel but rather is support steel. The supports are for cable trays only and do not support any other equipment or structure. The IBEW asserts that Ironworkers are qualified to install miscellaneous or structural steel but are not qualified to install support steel when it is used to support electric cables. The IBEW relies upon Regulation 1051 of the TQAA which indicates that such work is the exclusive component of an electrician’s trade.
9The Ministry of Labour filed a response on behalf of Inspector Benoit. The Ministry of Labour does not oppose the Ironworkers’ request for a suspension of Order No. 6.
10After considering the factors as set out in The Regional Municipality of Hamilton-Wentworth, supra, the Board is satisfied that it should exercise its discretion and suspend the operation of Order No. 6 in Field Visit No. 964817. The Board finds that the real dispute between the parties is primarily a jurisdictional dispute. The Board is satisfied that the suspending of Order No. 6 pending the disposition of its appeal will not endanger worker safety. It would appear that the Ministry of Labour agrees that the suspension of the order would not endanger worker safety, as it does not oppose the suspension request. The Ironworkers have indicated the prejudice its members will suffer should Order No. 6 not be suspended. Their members have been prevented from working while Order No. 6 is in place. Without the benefit of evidence, it is difficult for the Board to determine the merits of the appeal. While both the Ironworkers and the IBEW have raised substantial arguments in support of their respective positions in relation to Order No. 6, an assessment of those arguments and positions are best determined by the Board at a hearing dealing with merits of the appeal.
Disposition
11Having regard to the material filed by the parties, the Board is satisfied that it should exercise its discretion under section 61(7) of the Act to suspend the operation of Order No. 6 in Field Visit No. 964817 dated June 19, 2001. Accordingly this application in Board File No. 1232-01-HS is hereby granted and Order No. 6 in Field Visit No. 964817 is hereby suspended pending the disposition of its appeal.
12The appeal in Board File No. 1166-01-HS is referred to the Registrar.
13This panel of the Board is not seized.
“John Morgan Lewis”
for the Board