2799-00-HS; 2802-00-HS Ontario Public Service Employees’ Union, Applicant v. Crown in Right of Ontario; (Ministry of Transportation) and Ministry of Labour, Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; October 15, 2001
These matters concern appeals pursuant to the provisions of section 61 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0. 1, as amended (“the Act”). The parties have concluded a Memorandum of Settlement which settled these appeals. The parties request that the terms of the Memorandum be made orders of the Board.
The Board directs the parties to comply with the terms of the Memorandum of Settlement concluded between them. It reads:
OLRB FILE NO. 2799-00-HS, 2802-00-HS
B E T W E E N
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
and
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF TRANSPORTATION,
MINISTRY OF LABOUR)
Respondents
MEMORANDUM OF SETTLEMENT
WHEREAS the Applicant filed appeals with the Ontario Labour Relations Board under s. 61 of the Occupational Health and Safety Act, captioned as OLRB File Nos. 2799-00-HS & 2802-00-HS, of the orders of the Ministry of Labour (MOL) health and safety inspectors issued in connection with their investigation of work refusals by driver examiners employed by the Ministry of Transportation (MTO) at the John Rhodes and Metro Toronto East Driver Examination Centres:
NOW THEREFORE the Applicants and Respondent MTO agree that the following shall constitute a full and final settlement of these appeals, and further agree to request the Board incorporate the terms of this memorandum into a decision of the Board and to issue the terms of this memorandum as orders of the Board pursuant to s. 61 of the Occupational Health and Safety Act:
THE G2 TEST
A. Definitions
- The MTO agrees that it will provide definitions and/or concrete examples in writing to all Driver Examiners of the following terms on the G2 Examination Record and Manual and that it will add these definitions to the training material for Driver Examiners on or before 3 months from the settlement date:
dangerous actions (G2 Examination record)
inadequate skill to complete test (G2 Examination record)
driving performance “so incompetent that completion of the test would endanger the driver and examiner" (G2 Manual, p. 17)
minor technical violations that do not merit immediate disqualification (G2 Manual, p.16, 17)
traffic law violations that do merit immediate disqualification.
Clarification of Roles
- The MTO agrees that it will replace or modify the language in the G2 Examination Record and/or Manual in order to clarify the role of the applicant and driver examiner in performing and marking the performance of the "Traffic Check" as follows:
a specific section of the G2 Manual will be developed that describes what monitoring the applicant's behaviours means and explains how a driver examiner can safely “monitor" both the applicant and the traffic by attending to the applicant as much as possible without losing comprehension of the traffic situation;
As part of the monitoring explanation, the ministry agrees that this section will explain that the test design accounts for the fact that the examiner cannot be expected to see everything the driver does on each and every manoeuvre. The test is designed to allow for a sampling of the driver's performance by providing repeated opportunities to observe the same behaviours when it is safe to do so.
Procedure to be Followed
- The parties agree to undertake the following process to provide a description of monitoring and how a Driver Examiner can safely monitor both the applicant and the traffic:
(a) the MTO will retain the services of an ergonomist certified by the Canadian College for the Certification of Professional Ergonomists (the "ergonomist"), who has a psychology background and experience in analysing traffic comprehension to prepare a report to be provided to the MTO and the Applicant on the monitoring activity of driver examiners during the G2 driver examination process as it is conducted at either or both the John Rhodes and/or Metro Toronto East Driver Examination Centres (the "Report");
(b) The Terms of Reference will request the Ergonomist to consider and respond, to the extent ergonomically possible, to the following questions:
(i) the range of times, based on the type of traffic situation that it is safe to glance away from a traffic situation and at the applicant's head before comprehension of the traffic situation has been lost;
(ii) the range of times, based on the type of traffic situation, that a traffic situation must be observed, following a glance away to sample applicant behaviour during a manoeuvre, before it is safe to glance away again;
(iii) based on this information, the range of times and frequency of glances that a Driver Examiner may safely perform. depending on the traffic situation. when monitoring an applicant's traffic check behaviour during the various manoeuvres of the G2 examination that are being marked;
(iv) concrete examples illustrating the various types of traffic situations which were used by the Ergonomist in determining the low, mid and high point of the ranges used in the Report.
(c) The Terms of Reference for the preparation of the Report will be produced and a copy provided to the Applicant on or before 4 months after the date of settlement. The Applicant will provide comments on the Terms of Reference on or before 7 working days after receipt of the Terms of Reference. The MTO will provide the Applicant with the final Report on or before a date 3 months after the Applicant provides its comments on the Terms of Reference to the MTO. The Applicant will provide its comments within 7 working days after receipt of the Report to the MTO and the MTO will produce the final definition on or before (2) months from the date the Applicant's comments are received.
The OLRB will remain seized to decide whether the terms set out in paragraphs 2 and 3 have been met in the revisions to the G2 Manual and Examination Record, having regard to the Report and comments of the applicant. The Board will retain jurisdiction to issue an order pursuant to section 61 of the Occupational Health and Safety Act (OHSA) should it find that the terms set out therein have not been met by the respondent employer.
The MTO agrees that it will commence providing training and/or instruction, as necessary, to all driver examiners and supervisors in the integration of the definition of monitoring into their performance of the G2 road test and into the intervention training provided to driver examiners and supervisors on or before a date (3) months after the final definition of "monitoring” is released.
B. G2 Observations
- The MTO agrees to make the following changes to the G2 Examination Record and Manual that will correlate the acceptable observations indicated in the following review of those documents and incorporate the changes into the test design and all relevant examiner training material on or before a date two (2) months after the final definition of "monitoring" is released.
Turns
Approach
Traffic check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "When it is safe to do so”. The revised wording will read: "After giving the instruction to turn and when it is safe to do so, watch the driver’s head for head movements that indicate looking around at the traffic and checking mirrors.” This information will also be communicated in the G2 training.
If Stop
The MTO agrees to clarify the requirement for the applicant to perform a "Traffic Check" while waiting for turns in the G2 Driver Examiner Manual to reflect that the examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Turning
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observation: The MTO agrees to clarify the G2 Driver Examiner Manual to instruct the driver examiner as to how to safely conduct both the observation of the applicant and the traffic scan. This information will also be communicated in the G2 training.
Hands/Gears: The MTO agrees to clarify the G2 Driver Examiner Manual to read: "At some point during the turn when it is safe to do so, a driver examiner should glance at the steering wheel to see if the driver has both hands on the wheel." This information will also be communicated in the G2 training.
Complete Turn
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observation: The MTO agrees to clarify the G2 Driver Examiner Manual to read: "Immediately after completion of the turn and when it is safe to do so, begin monitoring the driver’s head movements to see if he or she checks the mirrors.” This information will also be communicated in the G2 training.
Lane Changes
Traffic check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: As outlined in paragraphs 2 - 4 the MTO agrees to include a separate section in the G2 Driver Examiner Manual to describe what monitoring the driver's behaviours means and explain how a driver examiner can safely "monitor" both the applicant and the traffic. This section would give the term "monitor" an explicit definition and explain that monitoring the driver means attending to the driver as much as possible without losing comprehension of the traffic situation. This section would also explain that the test design accounts for the fact that the examiner cannot be expected to see everything the driver does on each and every manoeuvre. That is, the test allows for sampling of the driver's performance by providing repeated opportunities to observe the same behaviours. In addition to this general instruction, the examiner observation instructions for each manoeuvre will be revised as needed to be consistent with the general definition of monitoring. This information will also be communicated in the G2 training.
The MTO will add a new first sentence that reads: "Observe and consider the traffic situation before and during the task". The MTO also agrees to include wording that instructs examiners to monitor the applicant's head movements when it is safe to do so. This information will also be communicated in the G2 training.
Blind Spot: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that a driver examiner should discreetly perform blind spot checks when it is safe to do so and prior to giving the direction. Checking blind spots currently exists as an option for the driver examiner as stated in Section 5.2.2. Giving Route Directions: "Before you give a direction, it is important to check the traffic, and check that the driver can pay attention to you.” This option will be further reinforced in the Manual. This information will also be communicated in the G2 training. Driver Examiners will continue to be required to monitor the applicant and mark for blind spot traffic checks.
Hands: The MTO agrees to clarify the G2 Driver Examiner Manual to read: “At some points during the lane change when it is safe to do so, a driver examiner should glance frequently at the steering wheel to check that the driver has both hands on the wheel.” This information will also be communicated in the G2 training.
Business/Residential
Traffic Check: - The MTO agrees to replace Traffic Check with the term "Hazard Check" in this section of the G2 Examination Record. The G2 Driver Examiner Manual will also be amended to reflect this change.
Examiner Observation: The MTO agrees to clarify the G2 Driver Examiner Manual to indicate that if an applicant does not properly observe one of the designated traffic hazards because he/she is observing a non-designated hazard, the driver examiner should score as if the designated hazard was observed. This information will also be communicated in the G2 training. The designated hazards should be located at places where the examiner can safely monitor the driver to see if the driver conducts a search. The examiner does not need to stare at the driver to make this observation and the examiner observation instruction will be changed as required to clarify how to properly complete this observation. The directions for road test route design will also be changed, as required to clarify this and the designated traffic hazards will continue to remain a requirement of the test.
The MTO also agrees to clarify the G2 Driver Examiner Manual to read: "At three locations (non-intersections) and when safe to do so, watch the driver’s head for head movements that indicate looking left and right for vehicles or pedestrians that may be entering the road.” This information will also be communicated in the G2 training.
Mirror check: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that this is a monitoring activity and a driver examiner should glance frequently at the driver's head during the count, when it is safe to do so and while also scanning the traffic. This information will also be communicated in the G2 training.
Stop Intersection
Approach
Traffic Check: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that this is a monitoring activity and that the examiner should glance frequently at the applicant when safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual to read: “When the intersection comes in sight and it is safe to do so, watch the driver’s head for head movements that indicate he or she is looking around at the traffic and checking the mirrors.” This information will also be communicated in the G2 training.
Stopping
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual and add: "Observe and consider the traffic situation before and during the task. " The G2 Driver Examiner Manual will also be clarified to reflect the requirement for the applicant to perform a traffic check while waiting. In addition, the manual will be amended to indicate that the examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Starting
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observation: The MTO agrees to clarify the G2 Driver Examiner Manual to read: "When the driver moves off and it is safe to do so, glance frequently at the driver’s head to see if they turn to look left and right, while also scanning the traffic situation.” This information will also be communicated in the G2 training.
The MTO also agrees to clarify the G2 Driver Examiner Manual to read: “After the driver crosses the intersection and when it is safe to do so, begin monitoring the driver’s head movements to see if he or she checks the mirrors”. This information will also be communicated in the G2 training.
The MTO agrees to clarify what 'monitor' means when referenced in each table in the G2 Driver Examination Manual.
Hands-Gears: The MTO agrees to clarify the G2 Driver Examiner Manual to read: "At some point in the intersection when it is safe to do so, glance at the steering wheel to see if the driver has both hands on the wheel. " This information will also be communicated in the G2 training.
Through Intersection
Approach
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observation: Bulletin S-35-00 (Nov. 10/00) added a new first sentence. "Observe and consider the traffic situation before and during the task." In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to read: "When the intersection comes in sight and it is safe to do so, monitor the driver’s head for head movements that indicate that he or she is looking left and right and is checking the mirrors.” This information will also be communicated in the G2 training.
Speed: The MTO agrees to remove the requirement for the driver examiner to look for the driver covering the brake. Both the G2 Driver Examiner Manual and the G2 Examination Record will be amended to reflect this change. This information will also be communicated in the G2 training.
Through
One hand: The MTO agrees to clarify the G2 Driver Examiner Manual to read: "At some point in the intersection when it is safe to do so, glance at the steering wheel to see if the driver has both hands on the wheel. "This information will also be communicated in the G2 training.
Traffic Check: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that the examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
The MTO also agrees to clarify the wording under 'Driver Actions' to read: "If the driver is not required to slow down for the intersection, he or she is not required to check the mirrors since no reduction in speed occurred."
Expressway
Entering
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: Bulletin S-35-00 added the requirement for the driver examiner to: “Observe and consider the traffic situation before and during the task "The MTO also agrees to clarify the G2 Driver Examiner Manual to reiterate the idea of monitoring the driver without excluding the need to observe the traffic situation. This information will also be communicated in the G2 training.
Driving Along
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that this is a monitoring activity (refer to Lane Changes) and a driver examiner should glance frequently at the driver's head during the counts, when it is safe to do so, and while also scanning the traffic. This information will also be communicated in the G2 training.
Exiting
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect the monitoring nature of this observation utilizing wording reflecting comments in Lane Changes. This information will also be communicated in the G2 training.
Roadside Stop
Approach
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observation: The MTO agrees to amend the G2 Driver Examiner Manual to clarify that the examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Resume
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-35-00 to include the following sentence: "Observe and consider the traffic situation before and during the task." In addition, the MTO agrees to clarify the sentence that begins with: "When the driver is ready to move off…” to reflect that the driver examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Three-Point Turn
Approach
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-36-00 to include the following sentence: "Observe ad consider the traffic situation before and during the task.” In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "when it is safe to do so” when monitoring the driver's head movements and scanning the traffic situation. This information will also be communicated in the G2 training.
Turn Around
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual to reflect that the driver examiner should glance frequently at the applicant when it is safe to do so, as well as scan the traffic situation. This information will also be communicated in the G2 training.
Resume
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-35-00 to include the following sentence: "Observe and consider the traffic situation before and during the task.” In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "'when it is safe to do so” when monitoring the driver's head movements and scanning the traffic situation. This information will also be communicated in the G2 training.
Parallel Park
Approach
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-35-00 to include the following sentence: "Observe and consider the traffic situation before and during the task.” In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "when it is safe to do so" when monitoring the driver's head movements and scanning the traffic situation. This information will also be communicated in the G2 training.
Park
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-35-00 to include the following sentence: "Observe and consider the traffic situation before and during the task.” In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "when it is safe to do so" when monitoring the driver's head movements and scanning the traffic situation. This information will also be communicated in the G2 training.
Resume
Traffic Check: The MTO agrees to make the changes set out in paragraphs 2 and 3 above.
Examiner Observations: The MTO agrees to clarify the G2 Driver Examiner Manual as per Bulletin S-35-00 to include the following sentence: "Observe and consider the traffic situation before and during the task.” In addition, the MTO agrees to clarify the G2 Driver Examiner Manual to include the phrase "when it is safe to do so" when monitoring the driver's head movements and scanning the traffic situation. This information will also be communicated in the G2 training.
- The MTO agrees that once the changes to the G2 Examination Record and Manual have been made it will provide written direction to Driver Examiners on these changes and incorporate them into the G2 initial and maintenance training. These changes will include information and instructions on how Driver Examiners are to safely provide directions, observe the applicant, the controls, the vehicle's path, the roadway environment, and mark the score sheet, while remaining vigilant with respect to continuously changing hazards and maintaining the ability to perform appropriate interventions. Such information and instruction will be provided on or before three (3) months from the date on which the final definition of "monitoring" is released.
C. Out of Order Vehicles
The MTO agrees that it will instruct Driver Examiners that they must conduct a pre-test inspection and record the results on a revised G2 Examination Record. The MTO agrees that all Driver Examiners will receive instruction on how to perform a pre-test vehicle inspection and how to record the results on the G2 Examination Record. The MTO agrees that any test vehicle with a visible or audible defect that contravenes the Highway Traffic Act (chapter H.8 or Regulation 611) as well as the items listed in paragraph 12 will result in the test being declared Out-of-Order. In addition, any test vehicle with a defect that affects the safe operation of the vehicle and/or the personal safety of the Driver Examiner will be declared Out-of-Order.
The MTO agrees to clarify what will constitute an out-of-order in the DE Manual and agrees to amend the DE Manual to clarify that the following defects would constitute an out-of-order:
hand brake is not functional (Pending the outcome of the review outlined in paragraph 10 below)
dual brake not functional (DI vehicle)
door not working properly (open or close)
no seat belts (driver or examiner)
seat belts not functioning properly (driver or examiner)
large cracks, stars etc. in the area of the windshield "swept by the driver's and/or passenger's blade" which obstructs their vision.
brake lights not functioning
flat tire
donut tire any wheel
invalid sticker or expired 10-day permit
vehicle will not start
unsecured muffler
seat not secured or no seat
any turn signal not working
windshield wiper not working or no washer fluid (if weather conditions warrant)
defroster not working (if weather conditions warrant)
no rear bumper
horn not working
passenger (except for the purposes of checkrides) or pets in car
car stalls more than 3 times
speedometer not working
obvious fuel leaks (i.e. dripping)
vehicle parts not secured if significant (i.e. hood)
altered vehicle plate
in-transit permit
more than one missing wheel nut per wheel
flammable goods or compressed gas
work vehicle with unsecured contents
missing vehicle
- The MTO agrees that, if it can be done safely, it will instruct the Driver Examiners that they must physically check the test vehicle parking brake before commencing the test using the following procedures:
a. the MTO will provide the applicant with a copy of the procedure for safely checking the parking brake or with its reasons why it is unsafe to check the parking brake on or before six (6) months from the settlement date;
b. the applicant will have 7 working days to provide its comments in writing on the procedure;
c. if the testing of the parking brake is determined to be a safe process, the MTO will issue direction to Driver Examiners on the vehicle parking brake test procedure within 3 months after the receipt of the applicants comments referenced in b above;
d. if the MTO provides reasons why it is unsafe to check the parking brake, and the applicant disagrees, then the issue will be referred to the OLRB for determination as to whether or not, and how, the check can be done safely;
The MTO agrees to clarify section 5.1.4. (Pre-test Vehicle Check) in the DE Manual to read: "Brake lights and turn signals must be in operating condition. Vehicles without operating brake lights and turn signals will be declared an out-of-order.” The reference to 'hand signals may be used in place of brake lights and turn signals' will be removed.
The MTO agrees to clarify section 5.1.4. (Pre-test Vehicle Check) in the DE Manual to explain that a driver examiner should ensure that the vehicle has an operating horn.
The MTO agrees that a driver examiner should consult with the Centre Supervisor on any of the following items, if he/she is concerned about his/her health and safety. The Centre Supervisor will decide whether the following situations would constitute an out of order. However, the driver examiner will retain the right to refuse unsafe work under OHSA if he/she is still concerned about his/her health and safety.
Defective tires
Noisy or leaky muffler
no rear view mirror. This will not be considered an out of order if the vehicle has a mirror that affords a clear view to the rear of the vehicle. The mirror must also be in good condition and maintain its adjustment.
fumes in car
dirty vehicles which could pose a health risk to worker
insects in vehicle which could pose a health risk to worker
The MTO agrees to enhance existing guidelines to driver examiners that will clarify what constitutes an early termination or out of order when vehicle defects become apparent once the vehicle is put in motion.
The MTO agrees to make the changes and clarifications in C. above on or before [a date 3 months from the date of settlement].
D. The Out-of Order Applicant
- Expressway Experience
The MTO agrees to incorporate Bulletin S-12-0l dated March 16, 2001 attached as Appendix "A" into a Directive and/or amendment to the G2 Manual to be applicable to all G2 applicants.
The MTO agrees to maintain its current policy which states: "If, during the initial stages of the road test it becomes obvious that the applicant lacks sufficient knowledge and skills to safely control the motor vehicle, and is so incompetent as to be dangerous, the driver examiner should terminate the road test.”
- Ability to Understand Examiner's Directions and Safely Follow Them
1 8. The MTO agrees to provide a Fact Sheet or other form of communication in both English and French to those who successfully complete the written test which will contain:
a. examples of the instructions the applicant will be expected to follow during the road test;
b. notice that the road test must be conducted in a vehicle that is roadworthy and safe, failing which the test will be cancelled.
1 9. The MTO agrees to investigate the current practices related to out of orders for drivers who are unable to follow test manoeuvre requests. This review will assess the human rights implications of denying applicants access to the test based on an inability to understand English or French along with the potential for including other questions which may provide a better indication of the applicant's language skills. The results of this review will be provided to the applicant within 3 months from the settlement date.
- Excessively Nervous Applicants
The MTO agrees that an applicant who demonstrates excessive nervousness, should be put at ease by the driver examiner. Further, the ministry agrees to include a section on "nervousness" in the Fact Sheet or other form of communication being prepared as outlined in paragraph 22.
The MTO agrees to instruct Driver Examiners that the Driver Examiner is required to fill out the section of the G2 Examination Record dealing with medical conditions and the applicant is required to sign this section of the form prior to the commencement of the road test portion.
The MTO agrees to clarify the DE Manual by setting out the procedures to be followed when an applicant replies yes to one of the questions, including the criteria to be applied in respect of each of the particular conditions for determining whether it is safe to conduct a road test with an applicant who has answered yes.
The MTO agrees that the changes, instructions and clarifications agreed to in D, above will be provided on or before [a date 3 months after the date of settlement].
E. Procedure Where Applicant Disputes Out of Order
- As is current practice, the MTO agrees that if, after reviewing the answers to the questions provided by the applicant and the Driver Examiner's report concerning the observations of the applicant's care and control (if the road test was commenced) which led to the declaration of Out-of-Order, a supervisor disagrees with the decision, the matter becomes a refusal to work under s. 43 of the Occupational Health and Safety Act.
F. Disclosure of Driving Records and Previous Test Experience
- The MTO agrees to provide the number of previous road test disqualifications of a test applicant to the Driver Examiner prior to each road test and that this information will be provided commencing [a date 3 months after the date of settlement]. In addition, the ministry agrees to investigate a process by which the Center Dispatcher could review a test applicant's Driver Record and if the information met certain criteria (i.e. convictions, suspensions, etc.) it would be provided to the Driver Examiner. Following this investigation, the ministry agrees to provide the applicant with a decision on whether this process is practical to implement on or before a date 3 months after the date of settlement.
G. Procedure for Dealing with Local Issues
The MTO and the Applicant agree to a one time review of' the G2 road test routes at the Metro Toronto East and John Rhodes Driver Examination Centres, which will be conducted following the revisions to the G2 Manual and Record agreed to above. This one time review will involve the test route being driven by a worker member of the local Joint Health and Safety Committee or Worker Health and Safety Representative and one management member of the local Joint Health Safety Committee in order to review whether changes to the route are required as a result of the changes agreed to above. This shall be considered an inspection of the workplace pursuant to ss. 8(9) & 9(23) of the OHSA, as the case may be, and they will provide any recommendations for changes to the route and/or time allotted to the Employer and the Union in accordance with ss. 8(9) & 9(23) on or before a date 2 months following the completion of the training and/or instructions on the changes. The inspection report must be sent to the senior management person in charge of the workplace and a copy to the local Occupational Health and Safety office as soon as practicable after the inspection.
The MTO and the Applicant agree that following discussion of the recommendations at the local Joint Health and Safety Committee level, any outstanding disagreements will be managed according to existing Terms of Reference for the Structure and Function for the MTO Joint Health and Safety System established under the OHSA section 9(3) Minister's order.
H. Procedure for Dealing with Risk of Assaults
The MTO agrees, as part of the follow up training to training provided in the Summer 2000, to provide instruction and education to Driver Examiners concerning the "different possibilities and response to workplace violence" on or before March 31, 2002 at the John Rhodes and Metro East Driver Examination Centres.
As part of the Internal Responsibility System the MTO and the Union agree that the issue of workplace violence raised as Item #12 in the Eddy Letter will be discussed further at the Ministry Joint Health and Safety Advisory Committee. Further, the applicant agrees that this committee will be utilized to obtain comments on the Ministry's Workplace Violence Policy & Guidelines.
In view of the agreements recorded herein, the Applicant agrees to withdraw its Appeals in OLRB File Nos. 2799-00-HS and 2802-00-HS, subject to the OLRB retaining the jurisdiction to determine the matters expressly remitted to it to determine as set out above, and retaining jurisdiction to determine whether either party has complied with this settlement and, in the case of non-compliance, what that party should do in order to achieve compliance.
Dated this 24th day of September, 2001.
On behalf of the Applicant On behalf of the Respondents
(“Illegible Signature”) (“Illegible Signature”)
(“Illegible Signature”)
(“Illegible Signature”)
- Subject to the Board retaining jurisdiction as provided in paragraph 30 of the Memorandum, the applications are withdrawn.
“Christopher J. Albertyn”
for the Board