Archived - Decision: 95-021 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II,

of a direction issued by a safety officer

Decision No.95-021

Applicant: Bell Canada

483 Bay Street, Floor 4 South Tower

Toronto, Ontario

Represented by: André L. Paiement, Senior Counsel

Respondent:Joel Carr

National Representative

Communications, Energy and Paperworkers Union of Canada

Mis en cause: Rod J. Noel

Safety Officer #1768

Human Resources Development Canada

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Toronto on November 22, 1995. In attendance

were:

- Joel Carr C.E.P.

- Paul Lochner C.E.P.

- Jim Locke C.E.P. Local 26

- Gary Lloyd C.E.P.

- Rod Noel HRDC - Labour

- P. Wright HRDC - Labour

- Mary Gawrylash Bell Canada

- Ward Saunders Bell Canada

- Dave James Bell Canada

- Al Thompson Bell Canada

- Terry Maiden Bell Canada

- Jim Allan Bell Canada

- Michelle Parent Bell Canada

- André L. Paiement Bell Canada

Background

The events leading to the direction under review are well detailed in

the LAO ASSIGNMENT NARRATIVE FORM prepared by safety officer Rod Noel

and dated February 9, 1995. At issue is a Bell Canada manhole located

on New Street, east of Beverly Street, in Burlington, Ontario. Since

1991, this manhole has been known to be contaminated, probably with

fuel oil. For some time now, Bell's claims department has been trying

to identify the source of contamination, resolve the problem and

receive compensation for the cleanup.

Since 1991, nobody has entered this particular manhole. In November

1994 however, an air leak in a cable was discovered, which air leak

would eventually require repairs. On January 5, 1995, there was a

meeting at the site with the following persons in attendance:

A. Nemet, senior environmental officer, Ministry of Environment,

Ontario

E. Mann, staff manager - claims, Bell Canada

Paul Lochner, employees' representative, Safety & Health Committee,

Bell Canada

Ward Saunders, cable maintenance manager, Burlington, Bell Canada

B. Dicaire, technician, Bell Canada

D. Beynon, technician, Bell Canada

There was still an odour in the manhole and it was decided to call in a

private consultant to identify the contaminant and, hopefully, the

source of contamination. At that time, Paul Lochner asked to be

involved in any further investigation related to the site.

On January 9, 1995, at the request of Ward Saunders, Eileen Beck of

Workplace Environments conducted an on-site evaluation of the manhole.

Mr. Ward Saunders and Mr. Dave Beynon of Bell Canada were present at

the time. On that same day, Paul Lochner filed a complaint with Human

Resources Development Canada, Labour Program, to the effect that "the

employer has failed to involve a joint health and safety committee

member in the testing of a hazardous confined space". Safety Officer

Rod Noel investigated the complaint and, as a result, issued a

direction to an employee (appendix 1).

Submission by the employer's representative

The arguments presented by the employer were:

1 - the direction makes reference to subsection 10.2(1)(b) of the

Canada Safety and Health Regulations; as there is no such

subsection, the direction should be rescinded;

2 - Ward Saunders is a manager, not an employee; paragraph 126(1)(d)

has to do with the duties of employees and is, consequently, not

applicable;

3 - the evaluation which was carried out by consultant Eileen Beck

was a qualitative evaluation, the sole purpose of which was to

identify the contaminants present in the manhole so as to trace the

source of contamination for the purpose of cost recovery; the

presence of an employee of the Ontario Ministry of Environment at

the January 5, 1995, on-site meeting indicates the purpose of the

survey; furthermore, an industrial hygiene survey, such as would

have been carried out previous to entry in the manhole, would be a

quantitative survey, designed to evaluate the exposure of a person

to contaminants;

4 - if one supposes that section 10.2(1)(b) of the Regulations is

the provision referenced in the direction, this provision states

"Where there is a likelihood that the safety or health of an

employee in a workplace..."; however, there was no intention to send

a person down the manhole, hence there was no likelihood.

Submission by the employees' representative

The following arguments were presented on behalf of the employees:

1 - the investigation was carried out by an industrial hygiene

consultant: this is an indication of the purpose of the survey;

2 - there was an air leak in the cable and even if temporary

solutions can be used to compensate for leaks, such as raising air

pressure or supplying nitrogen in the immediate vicinity of the leak

from a compressed gas cylinder, the leak must eventually be

repaired; the investigation was carried out for that purpose; the

on-site meeting of January 5, 1995 involved the claims manager, but

it also did involve a number of cable maintenance people;

3 - Elaine Mann, the claims manager, believed the cable maintenance

people had to enter the manhole to fix the cable air leak; this

belief stemmed from conversations with the cable maintenance

managers over the previous months.

Discussion

I tend to agree with the employer's arguments: there was a known

environmental problem; the survey was a qualitative survey by

opposition to a quantitative survey; and there was in fact no entry.

The employees' argument is based on suppositions, not on facts. There

is however a more fundamental issue which appears to have been

overlooked in this case. Subsection 10.2(1) of the Regulations reads

as follows:

10.2 (1) Where there is a likelihood that the safety or health of an

employee in a work place is or may be endangered by exposure to

a hazardous substance, the employer shall, without delay,

(a) appoint a qualified person to carry out an

investigation; and

(b) notify the safety and health committee or the safety and

health representative, if either exists, of the proposed

investigation and of the name of the qualified person

appointed to carry out this investigation.

In Part II of the Canada Labour Code, in subsection 122.(1), work

place is defined as:

"work place" means any place where an employee is engaged in work

for the employee's employer.

Because there was no employee in the manhole, the manhole is not a

workplace and subsection 10.2 (1) therefore has no application.

However, manholes are confined spaces and, because confined spaces are

particularly hazardous, the regulator has created special provisions to

deal with them. These are outlined in Part XI, Confined Spaces. A

point can also be made that, given a situation where two regulations

are applicable, the more specific ones will take precedence: in this

case, the confined spaces regulations are narrower in scope than the

Hazardous Substances Regulations and consequently take precedence.

In Part XI of the Regulations, Confined Spaces, section 11.2 reads:

11.2 (1) Where it is likely that a person will, in order to perform

work for an employer, enter a confined space and an assessment

pursuant to this subsection has not been carried out in respect

of the confined space, or in respect of the class of confined

spaces to which it belongs, the employer shall appoint a

qualified person

(a) to carry out an assessment of the physical and chemical

hazards to which the person is likely to be exposed in the

confined space or in the class of confined spaces; and

(b) to specify the tests that are necessary to determine

whether the person would be likely to be exposed to any of

the hazards identified pursuant to paragraph (a).

(2) The qualified person referred to in subsection (1) shall, in

a signed and dated report to the employer, record the findings

of the assessment carried out pursuant to paragraph (1)(a).

(3) The employer shall make a copy of any report made pursuant

to subsection (2) available to the safety and health committee

or the safety and health representative, if either exists.

(4) Subject to subsection (5), the report made pursuant to

subsection (2) shall be reviewed by a qualified person at least

once every three years to ensure that its assessment of the

hazards with which it is concerned is still accurate.

(5) If a confined space has not been entered in the three years

preceding the time when the report referred to in subsection(4)

should have been reviewed and no entry is scheduled, the report

need not be reviewed until it becomes likely that a person will,

in order to perform work for an employer, enter the confined

space.

When the events which gave rise to the direction are compared with the

requirements outlined in 11.2, it is readily apparent that there was no

contravention to the Canada Labour Code or to the regulatory

requirements. If it was an environmental assessment, as claimed by the

employer, the Canada Labour Code and the Occupational Safety and Health

Regulations do not apply; if it was a hazard assessment leading

eventually to a confined space entry as claimed by the employees'

representative, it meets the requirements outlined above: the employer

selected a qualified person to do an evaluation; the qualified person

prepared a report of her findings; the report was made available to the

safety and health committee.

Also, the directions stated that the manager failed to abide by the

company's instructions contained in the Bell Manager's safety guide

which states that "a representative of the Local Safety and Health

Committee will be invited to witness the gathering of samples". This

sentence is extracted from a publication entitled "Managing Safety - A

Manager's Guide" published by Bell and dated 1993-01. More

specifically, this sentence is found on page 37 of this booklet; the

page is titled: Section 2 - ACCIDENT INVESTIGATIONS". This is not an

accident investigation: it is an environmental evaluation (according to

the employer) or, as a worst case, it is a hazard assessment prior to

confined space entry. Consequently, the instruction alluded to does

not apply in this case and the manager (or employee, depending on the

viewpoint) did not have to abide by it.

Decision

For the reasons outlined above, I HEREBY RESCIND the direction issued

by Safety Officer Rod Noel to Ward Saunders on January 10, 1995.

Decision given on December 7, 1995.

Bertrand Southière

Regional Safety Officer

IN THE MATTER OF THE CANADA LABOUR CODE - PART II

(OCCUPATIONAL SAFETY AND HEALTH)

DIRECTION TO AN EMPLOYEE UNDER SUBSECTION 145(1)

On January 10, 1995 the undersigned Safety Officer conducted an

investigation in the workplace operated by Bell Canada, being an

employer subject to the Canada Labour Code, Part II, at 1171 Pioneer

Road, Burlington, Ontario, the said workplace being sometimes known as

Bell - Burlington Work Centre.

The said Safety Officer is of the opinion that the following provision

of the Canada Labour Code, Part II is being contravened:

Paragraph 126(1)(d) of the Canada Labour Code - Part II

and subsection 10.2(1)(b) of the Canada Occupational

Safety and Health Regulations.

The employee, Ward Saunders, a work centre manager, without any valid

reason, failed to notify the Joint Health and Safety Committee that a

hazardous substance investigation sampling procedure would be

conducted. The employer's instructions to the manager, contained in

the Bell manager's safety guide, state that "a representative of the

Local Safety and Health Committee will be invited to witness the

gathering of samples."

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of

the Canada Labour Code Part II, to terminate the contravention from the

date the present direction is issued.

Issued at Burlington, Ontario this 10th day of January 1995.

________________

Rod J. Noel

Safety Officer

Certificate #1768

To: Ward Saunders, Manager

Bell Canada

1171 Pioneer Road

Burlington, Ontario

L7M 1K5

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 95-021

Applicant: Bell Canada

483 Bay Street, Floor 4 South Tower

Toronto, Ontario

Represented by: André L. Paiement, Senior Counsel

KEYWORDS:

Manhole; workplace; contaminants;

PROVISIONS:

Code: 126. (1)(d) and 122. (1)

Regulations: 10.2 (1)(b) and 11.2

SUMMARY:

A Bell Canada manager retained the services of an industrial hygienist

to carry out an environmental assessment of a contaminated manhole.

The hygienist conducted her survey in the presence of the manager and

of one of the technicians. A member of the joint safety and health

committee complained to a safety officer that "the manager had failed

to involve a joint health and safety committee member in the testing of

a hazardous confined space". The safety officer issued a direction to

the manager as an employee, to the effect that he had contravened

paragraph 126 (1) (d) of the Canada Labour Code, Part II, and

subsection 10.2 (1) (b) of the Canada Occupational Safety and Health

Regulations.

The regional safety officer concluded that a manhole is not a

workplace, unless a person works in it, consequently, subsection 10.2

(1) (b) of the Canada Occupational Safety and Health Regulations does

not apply. Section 11.2 of the Canada Occupational Safety and Health

Regulations contains the applicable requirements. The procedure

followed by the manager agreed with the requirements of section 11.2,

consequently, there was no breach of paragraph 126. (1) (d) of the

Canada Labour Code. The direction was rescinded.