Archived - Decision: 95-016 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH
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Review under section 146 of the Canada Labour Code, Part II,
of a direction issued by a safety officer
Decision No.95-016
Applicant: E. Skowronek
Manager - Health & Safety
British Columbia Maritime Employers Association
Vancouver, B.C.
Respondent: Ron Jackson
Safety Coordinator
Local 508
International Longshoremen's & Warehousemen's Union
Mis en cause: John Haswell, Safety Officer, and
Geoffrey S. Vale, Safety Officer (now retired)
Canadian Coast Guard
Nanaimo, B. C.
Before: Bertrand Southière
Regional Safety Officer
Human Resources Development Canada
A hearing was held in Nanaimo on August 9, 1995. In attendance were:
- John Haswell, Ship safety, Canadian Coast Guard Safety Officer
- Jack McCarthy, Ship safety, Canadian Coast Guard
- Graham Constable, Ship safety, Canadian Coast Guard
- Geoff Vale, Argus Marine Surveyors
- Eric Skowronek, British Columbia Maritime Employers Association
- Dianne Richards, British Columbia Maritime Employers Association
- Stephen Cutler, Saga Forest Carriers
- Gerry Lutz, Westcan Terminals Ltd. & Westcan Stevedoring Ltd.
- Mike G. Fothergill, Empire International Stevedores Ltd.
- Alan Russell, Local 508
- Wayne Sargent, Safety Co-ordinator International Longshoremen's & Warehousemen's Union
- Ron Jackson, Local Safety Rep., Local 508
- Ken Arson, Canadian Stevedoring Co. Ltd.
Background
On April 10, 1995, there was a refusal to work aboard the M. V. Saga
Spray at Nanaimo "C" Berth. As a result, Safety Officer G. Vale of the
Steamship Inspection Office, Canadian Coast Guard, issued a direction
upholding the refusal to work. The following day, April 11, 1995, his
supervisor, F. M. Bullen rescinded the direction at the request of the
employer. On April 25, 1995, Ron Jackson, Safety Co-ordinator, Local
508, requested that F. M. Bullen's decision be reviewed. A preliminary
decision, No. 95-007 (appendix 1), was issued May 23, 1995.
A conclusion of this preliminary decision was that the original
direction from G. Vale as well as the appeal by the employer were still
valid. However, in the meantime, Mr. Vale retired from the Canadian
Coast Guard and it was thought that he would be unavailable to explain
the reasons motivating his decision. Accordingly, it was decided to
issue an essentially identical direction to a similar ship, the M. V.
Saga Crest, which direction was issued by Safety Officer John Haswell,
certificate #2652, on June 28, 1992. This direction, essentially
similar to the direction issued by G. Vale to the Saga Spray, reads as
follows:
0930 HRS
No. 045WEDNESDAY JUNE 28, 1995
AT NANAIMO "B" BERTH
TO: MASTER/OWNERS "SAGA CREST" VOY(?)9
IT WAS NOTED THAT THE EMERGENCY STOP "COWCATCHER" NOS 1 & 2 GANTRY CRANES, WHEN OPERATED, ONLY STOPS THE CRANE WHILE THE EMERGENCY STOPIS ACTUATED. THIS IS TO BE CHANGED "PRIOR TO THE VESSEL RETURNING TO CANADA" SO THAT WHEN THE EMERGENCY STOP IS ACTUATED THE CRANE REMAINS STOPPED (I.E. IS RESET FROM THE CONTROL CAB). THE REFUSAL TO WORK IS UPHELD.
(signed) JOHN HASWELL
Tackle inspector
This direction was appealed on July 5, 1995, by the British Columbia
Maritime Employers Association on behalf of the employer, Westcan
Stevedoring Limited and the ship's representatives, Saga Forest
Carriers International (Canada) Inc.
Additional information
The two vessels in question are bulk carriers; as a matter of interest,
the Saga Crest measures close to 200 metres in length and has a summer
displacement of about 57,000 metric tonnes; she was launched in
December 1993. Each of these vessels is fitted with two 40 Long Ton
SWL gantry cranes which are used for loading and unloading the ship.
Rails installed along each side of the deck of the ships allow the
gantry cranes to move over the length of the ship. The space between
the gantry legs and the guardrails installed alongside the edges of the
ship's deck is very limited on most ships. In fact, from the pictures
in my possession, there is not enough room at this point on the Saga
Spray to allow a man to pass in between. However, on the inboard side
of the gantry legs, between the leg and the hatchway coaming, there
appears to be enough space either for a man to go in between the leg
and the hatchway or for the crane to go by a man standing alongside the
hatchway.
The existing Tackle Regulations issued under the Canada Shipping Act do
not contain any provision dealing specifically with this matter.
However, a draft document, issued a few years ago as a proposal for a
regulation, contained a provision, at section 6.39, which addressed
this issue. This section reads as follows:
"6.39 Operation of lifting appliances where the operator has a
significantly restricted field of vision shall be in accordance with
a procedure which will minimize the risk to persons in the blind
sectors and the equipment shall include:
(a) a stop button and an extended flexible warning touch element
at the deck level of each trunk or leg of the lifting appliance;
and
(b) a self-contained portable radio or a non-voice signalling
device between the deck foreman and the operator of the lifting
appliance."
In simple terms, this requires that there be an emergency stop switch
on each leg of the gantry and also, an "extended flexible warning touch
element" which, on many vessels, consists of a length of wire attached
to the front of each leg of the gantry, for the purpose of forewarning
a person of crane proximity by contact with this wire.
The two vessels in question, in lieu of the "extended flexible warning
touch element", feature instead a "cowcatcher": this is a small gate
fitted at the front of each leg of the gantry cranes. This gate,
installed at deck level, is about the same width as the gantry leg and,
from the pictures, appears to be about two feet high. The gate is
hinged at the top and is linked to a limit switch in a manner such
that, if there is an obstacle in the way, the gate will swing
backwards, actuating the switch, which in turn interrupts power to the
crane translation motors. This is a temporary interrupt in the sense
that, when the gate is released, power is restored and, if the operator
is still actuating the control, the crane will resume its motion. By
contrast, the emergency stop, which on these ships is a pull cord
stretched between the gantry legs, shuts down the power to the motors
by tripping the breaker; restoring power requires resetting the breaker
which is located outside of the operator's control station.
The refusals to work, the first one occurring on April 10, 1995, on
board the M.V. Saga Spray, the second one occurring June 28, 1995, on
board the M.V. Saga Crest, are based on the employees' contention that,
because the interruption caused when the"cowcatcher" hits an obstacle
is momentary, there is a danger that someone could be hurt because the
crane can restart without the operator verifying the cause of the
interruption. The employees want the "cowcatcher" interrupt wired in
such a way that, if it is deflected by an obstacle, it will trip the
breaker. This will force the operator to get out of his position to
find the cause of the interruption and to reset the breaker.
Submission by the employer
The employer submits that the Canada Occupational Safety and Health
Regulations do not apply aboard a ship. Furthermore, the Marine
Occupational Safety and Health Regulations do not apply to vessels, but
only to employees. The applicable regulations are the Tackle
Regulations promulgated under the Canada Shipping Act and the two
vessels more than meet the applicable requirements. The vessels do
have emergency stops for the gantry cranes and the "cowcatchers" in
question are supplementary safety systems intended as substitutes to
the "extended flexible warning touch elements" referred to in section
6.39 of the draft Tackle Regulations.
The employer also argues that the situation does not constitute a
danger as defined in the Canada Labour Code. Consequently, there is no
ground to support the refusal to work.
Submission by the employees
The argument presented by the employees is essentially that, if a
person was to fall in front of a moving crane, the crane would stop
when it touches him. If he is moved aside, then the crane could resume
its travel and go over him, likely causing injury. If the "cowcatcher"
is rigged as an emergency stop, then the crane operator will have to
leave his station and investigate the cause of the shutdown before
resetting the breaker. This would eliminate the risk described above.
Decision
As noted in the employer's submission, the Canada Occupational Safety
and Health Regulations do not apply aboard a ship. The Marine
Occupational Safety and Health Regulations do apply to employees
employed in the loading and unloading of ships (see subsection 1.3(c)
of the Marine Occupational Safety and Health Regulations), but, there
are no provisions applicable in the instant case. Questions related to
materials handling equipment on board ships have always been considered
as coming under the Tackle Regulations.
However, the Canada Labour Code does apply to employees working aboard
ships and they do have the right to refuse dangerous work. In so far
as my authority stems from the Canada Labour Code, I can make a
decision on the issue of the refusal to work; I have no authority to
interpret the Tackle Regulations. The only issue I can review then as
Regional Safety Officer is this: did the safety officers make a correct
decision in accepting the refusal to work?
I have reviewed the employees' argument to the effect that a person
could fall infront of a moving crane, then, after the crane has stopped
because the cowcatcher has detected the obstacle, he could roll away,
allowing the crane to continue its trave. This assumes that the
operator is still holding the crane travel control, in which case the
person could get run over. I cannot accept this argument: if the person
rolls ahead of the crane, as soon as the crane starts moving again, the
cowcatcher will again engage with the obstacle and again stop the
crane; if the person rolls by the side enough to be out of reach of the
cowcatcher, then the crane will travel either by him or over him,
because the cowcatcher's gate is very low, about the same width as the
gantry's leg and basically sweeps the full path of the gantry.
An argument was also made that when the crane stops, especially when it
has just restarted, it is liable to hesitate or shudder somewhat as it
stops. However, when I asked if this was the case with these particular
vessels, I was answered in the negative. The definition of "danger"
contained in the Code is quite specific:
"danger" means any hazard or condition that could reasonably be
expected to cause injury or illness to a person exposed thereto
before the hazard or condition can be corrected.
I do not believer the situation on these two ships constitute a danger
as defined in the Code. I understand that there might be other similar
vessels where conditions might be such as to be qualified of
"dangerous" as envisioned by the Code, but it is not the case
presently.
Accordingly, I HEREBY RESCIND the directions issued by Geoffrey Vale
to M/V Saga Spray on April 10, 1995 and by John Haswell to M/V Saga
Crest on June 28, 1995.
Decision given onNovember 27, 1995.
Bertrand Southière
Regional Safety Officer
SUMMARY OF REGIONAL SAFETY OFFICER DECISION
Note: To be read in conjunction with Decision # 95-007(p)
Decision No.: 95-016
Applicant: British Columbia Maritime Employers Association
represented by E. Skowronek, Manager, Health & Safety
KEYWORDS:
Gantry cranes; emergency stops; extended flexible warning touch
element; tackle inspectors; Tackle Regulations.
PROVISIONS:
Code: 128(1)
SUMMARY:
Further to a refusal to work on board the M.V. Saga Spray, in Nanaimo
harbour, the safety officer upheld the refusal to work and issued a
direction to the employer ordering him to modify the two gantry cranes
on board the ship. These gantry cranes move along the length of the
ship on rails set on each side of the deck and feature, at the front of
each leg of the gantry, an obstacle detector. These detectors consist
of a gate at deck level suspended on the front of each leg. If the
gate encounters an obstacle, it swings back, actuating a switch which
cuts the power to the translation motors. If the obstacle is removed,
the crane can resume its movement immediately if the operator is still
inputting the command. The direction required that this obstacle
detector operates similarly to an emergency switch whereby, if an
obstacle was detected, the main breaker would be tripped, requiring the
operator to go to the control cab to reset the breaker. These gantry
cranes also feature separate emergency switches.
A second direction, essentially identical to the first one, was issued
to the M.V. Saga Crest, a sistership of the Saga Spray, in June 1995.
The reason for this was that the safety officer who had issued the
first direction had retired and it was thought that he would not be
available to explain his decision.
The RSO rescinded the directions because it could not be demonstrated
that there was a danger due to the fact that the crane would remain
stopped only as long as there was an obstacle in front of it.
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