0122-00-HS Norm Chammas, Applicant v. Falconbridge Ltd. and Ministry of Labour, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Maurice Durocher and Norm Chammas for the applicant; Andrew Green and Shawn Kirwan for responding party employer; Bruce Arnott, Rick Kulyski and Robert Sinding for the Ministry of Labour.
DECISION OF THE BOARD; July 4, 2001
This is an appeal with respect to an Inspector’s decision not to issue an Order pursuant to the Occupational Health and Safety Act (the “Act”) against Falconbridge Inc. (the employer) with respect to an incident in the Acid Drying Tower around February 29, 2000. The matter was adjourned for a long time because the parties were engaged in a labour dispute. The matter came on for hearing on May 31, 2001.
The facts surrounding the incident itself are not in dispute and the Board heard no oral evidence. The applicant put certain documents before the Board that the responding party and Ministry of Labour did not object to, but did not consider to be highly relevant.
The Acid Drying Tower is a significant complex, in terms of its size, intricacy and importance to the employer’s operations. In February 2000, the employer realized that the Acid Drying Tower was not functioning properly because the downstream processes found water in the acids coming out of the Drying Tower. Put simply, the Drying Tower was not fully “drying” the acids as it was supposed to. This problem affects the efficiency of the downstream operations, but poses no safety hazards. As a result of the problem with the Acid Drying Tower, the employer decided to advance its plans for shutting down and maintaining the Tower from June to March.
It is agreed that the difficulty with the Acid Drying Tower posed no health and safety risk to that point. It is an entirely closed unit. The risks to health and safety, it is agreed, become a legitimate concern when the Tower is opened and employees are required to enter it and seek to fix the problem or perform maintenance.
The employer did not specifically advise the joint health and safety committee about the trouble with the Acid Drying Tower. Mr. Norm Chammas, the worker side Co-Chair of the Joint Health and Safety Committee found out about the problem after the Acid Drying Tower had been shut down, and employees had been sent in to perform maintenance and repair.
Mr. Chammas complained to the Ministry of Labour and a Health and Safety Inspector was dispatched. The Inspector concluded that the employer had breached section 62.1 of Regulation 854, (Mines and Mining Plants) to the Act, which reads:
62.1 (1) This section applies with respect to tasks at a workplace that are determined to be non-routine hazardous tasks jointly by the employer and the joint health and safety committee or the health and safety representative, if any, for the workplace.
(2) The employer and the joint health and safety committee or the health and safety representative shall jointly establish safe procedures for performing a non-routine hazardous task.
(3) The employer shall ensure that the safe procedures are set out in writing.
(4) The employer shall ensure that workers are informed that a task is a non-routine hazardous task and are informed about the procedures for performing it before beginning the task.
(5) A worker performing a non-routine hazardous task shall follow the established procedures.
The Inspector concluded that entering the Tower in these circumstances was a non-routine hazardous task for which the joint health and safety committee should have established safe procedures, and ordered compliance. The employer is not appealing that Order.
The Inspector declined to conclude that the employer had breached section 53 of the Act. I will set out sections 51 to 53 because it is appropriate to consider section 53 within the context of these companion provisions:
Notice of death or injury
- (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone, telegram or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
Preservation of wreckage
(2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of,
(a) saving life or relieving human suffering;
(b) maintaining an essential public utility service or a public transportation system; or
(c) preventing unnecessary damage to equipment or other property,
interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector.
Notice of accident, explosion or fire causing injury
- (1) Where an accident, explosion or fire causes injury to a person at a workplace whereby the person is disabled from performing his or her usual work or requires medical attention, and such occurrence does not cause death or critical injury to any person, the employer shall give notice in writing, within four days of the occurrence, to a Director, and to the committee, health and safety representative and trade union, if any, containing such information and particulars as are prescribed.
Notice of occupational illness
(2) If an employer is advised by or on behalf of a worker that the worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker, the employer shall give notice in writing, within four days of being so advised, to a Director, to the committee or a health and safety representative and to the trade union, if any, containing such information and particulars as are prescribed.
(3) Subsection (2) applies with all necessary modifications if an employer is advised by or on behalf of a former worker that the worker has or had an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker.
Accident, explosion, etc., at a project site or mine
Where a notice or report is not required under section 51 or 52 and an accident, premature or unexpected explosion, fire, flood or inrush of water, failure of any equipment, machine, device, article or thing, cave-in, subsidence, rockburst, or other incident as prescribed occurs at a project site, mine or mining plant, notice in writing of the occurrence shall be given to a Director and to the committee, health and safety representative and trade union, if any, by the constructor of the project or the owner of the mine or mining plant within two days of the occurrence containing such information and particulars as are prescribed.
It is agreed that this is not a “prescribed” incident, that would require a consideration of relevant regulations.
Mr. Chammas, in his capacity as Co-Chair of the Joint Health and Safety Committee appeals from the Inspector’s decision that the employer was not required to report the “failure” of the Acid Dry Tower to the Joint Health and Safety Committee. Mr. Chammas submits that the provision is very broad, and for good reason. He argues that unless employers are required to report a wide range of incidents, the joint health and safety committee will not find out about potentially hazardous situations in a timely way. He noted that in this case, because there was no timely reporting, the committee did not find out about the problems until the Tower had been opened and employees had entered it, with potential risk to their health and safety. He rejected the employer and the Ministry of Labour’s assertion that a broad interpretation of what had to be reported could see the requirement that the employer report a broken pencil sharpener or a faulty coffee maker. Mr. Chammas suggested that such a submission failed to take account of the seriousness with which the joint health and safety committee views these issues; such a trivial complaint would not be made. And, Mr. Chammas added, the Acid Drying Tower is a far cry from a faulty pencil sharpener and it is the employer’s non-reporting of the Acid Drying Tower about which he is complaining.
In Mr. Chammas’ view, “failure” should be interpreted broadly because a failure is a symptom; a means to give information that can be then investigated, in a joint, pro-active way. Without a requirement to report all “failures”, joint health and safety committees will not have enough time to plan repairs that take into account the necessary health and safety concerns.
Counsel for the employer submitted that the problem with the Acid Drying Tower was not a “failure”. Rather, he submitted, the employer detected an issue with the effectiveness of the Tower, that had the potential to damage machinery downstream, and to hamper the overall efficiency of the operation. In any event, counsel submitted, it is agreed that the decision to shut down the Tower created no immediate risk to health and safety. The only potential risk arises when the Tower is opened at which point the employer had in place mechanisms to address those risks. Moreover, the employer is not appealing the Order that concluded it had not met its obligations to establish, with the joint health and safety committee, procedures for performing a non-routine hazardous task.
Counsel for the employer argued that section 53 should be interpreted within the context of its companion provisions, section 51 and 52. Sections 51 and 52 require the reporting of accidents that cause death or injury; that there is a potential health and safety risk component is obvious and understood. Section 53 requires the reporting of incidents that have not caused injury or death. But section 53 does not require the reporting of all failures, only those that have an element of risk to health and safety to them. To conclude otherwise risks overwhelming the joint responsibility system and Ministry of Labour Inspectors with a landslide of notices, with the effect of trivializing important health and safety issues. Counsel submitted that the interpretation of the Act must be guided by its purpose, which is to protect worker health and safety. Consequently, counsel submitted, only those failures which carry a health and safety risk need be reported.
Counsel for the Ministry of Labour took the position that the problem with the Acid Drying Tower did constitute a failure. However, counsel agreed with the employer that it was not a failure that needed to be reported pursuant to section 53 of the Act. Counsel for the Ministry also asserted that only those failures that endanger worker health and safety must be reported. Counsel for the Ministry was similarly concerned that a broad interpretation of section 53 could result in a substantial increase in the number of notices, wasting time of both employers and Ministry Inspectors, and preventing both from properly focusing on failures that pose hazards to workers.
Counsel for the Ministry submitted that Mr. Chammas’ concerns about being informed in a timely way was accomplished by the employer’s obligation to bring non-routine hazardous tasks to the joint health and safety committee to develop proper procedures. Since the Acid Drying Tower presented risks only at the point of opening it to repair it, that was the appropriate time and circumstance to engage section 62.1 of Regulation 854 and discuss the presenting health and safety risks.
Decision
The parties are aware of only one decisions in which section 53 has been interpreted. In Falconbridge, [2000] OLRB Rep. March/April 202, the Board considered whether the employer had been obliged to report to the joint health and safety committee and the Ministry of Labour a collision between two vehicles in a mine, that resulted in property damage, but no injuries. Although the Board did not have to give meaning to the term “failure”, the Board commented on the purposes of section 53 within the broader context of the goals of the Act. It was thought that the accident had been caused, at least in part, by a lack of sufficient lighting on stationary vehicles in the mine, an issue about which the joint health and safety committee had already expressed concerns. At paragraph 12, the Board wrote:
Even seemingly minor incidents can alert parties to potential health and safety problems and therefore, given a choice about how to interpret the reporting requirements under the Act, it is appropriate to choose the interpretation which requires a greater, rather than more restricted, exchange of information. The Board therefore finds that this “accident” should be reported.
I echo the conclusion that the reporting requirements should be given a broad interpretation. Minor incidents can serve as an “early warning signal”, permitting the employer and the joint health and safety committee to take corrective measures. But the reporting requirement must be linked to the purpose of the Act, which is the promotion of occupational health and safety. Put another way, the definition of “failure” should take into account the purpose for reporting it, to enhance worker health and safety. If reporting the failure does not enhance worker health and safety, then the reporting is wasteful, and risks clogging both the internal responsibility system, and the resources of Ministry of Labour Inspectors. In the case before me, it is agreed among the parties that the difficulties with the Acid Drying Tower, and the actual shutting down of the Tower presented no immediate risk to worker health and safety. I conclude then, that assuming without finding that the Acid Drying Tower problem was a “failure”, it was not a failure that needed to be reported, because the reporting would offer no opportunity to safeguard or improve worker health and safety.
The obligation to safeguard health and safety was triggered by the opening of the Acid Drying Tower to effect repairs. At that point, the provisions of 62.1 of Regulation 854 come into play, and the joint health and safety committee has the opportunity to participate in the development of procedures for this non-routine hazardous task. I am satisfied that on the facts of this case, that opportunity was a timely and appropriate one for the joint health and safety committee to assume its responsibilities.
To interpret the obligation to report “failures” as broadly as the applicant suggests would run the serious risk of overwhelming the internal responsibility system and the resources of the Ministry, with the potential to detract from worker health and safety, rather than improve it.
In conclusion then, I find that the employer was not obliged to report the problems with the Drying Tower, pursuant to section 53 of the Act.
Disposition
- The appeal is dismissed.
“Mary Ellen Cummings”
for the Board