Archived - Decision: 96-002 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.96-002

Applicant: Canadian National Railway Company

97 Front Street West

Union Station, Suite 438

Toronto, Ontario

Represented by Kenneth R. Peel, Assistant Regional Counsel

Respondent: Timothy Gleason

Representative

United Transportation Union (U.T.U.)

905-707-5982

Mis en cause:W. B. Armstrong

Safety Officer #2787

Transport Canada, Surface

Toronto, Ontario

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Toronto on December 5, 1995. In attendance were:

Timothy Gleason U.T.U.

William Glass CN North America

Jan F. Polley CN North America

B. W. Maskerine CN North America

Robert Bruder CN North America

Kenneth Peel CN North America

W. B. Armstrong Transport Canada

Background

Further to an inspection, safety officer Nathalie Belliveau issued, on

January 21, 1994, a direction to CP Rail Ltd., at Boisbriand, Quebec,

requiring the employer to supply adequate body covering to

transportation employees who were performing duties such as handling

switches, uncoupling or riding rolling stock and any other similar

tasks which could result in a hazard of injury to the hands. Prior to

this direction, it had been customary in the railway industry for the

affected employees to supply their own workgloves.

A few months later, in May 1994, at a meeting of the transportation

health and safety committee at Hornepayne, CN North America, Northern

Ontario District, an employee member of the committee made a request

that gloves be provided to running trades employees. His request was

essentially based on the order previously issued by Transport Canada to

CP Rail Ltd. in Boisbriand. Safety officer W. B. Armstrong who was

attending the meeting advised him that the safety and health committee

should try to resolve the problem internally before asking the safety

officer to become involved.

In the meantime, the direction issued to CP Rail Ltd at Boisbriand had

been appealed by the employer to the regional safety officer. The

regional safety officer confirmed the direction on July 7, 1994.

On February 10, 1995, safety officer W. B. Armstrong issued a direction

verbally to the employer to the effect that, in his opinion, paragraph

125(j) of the Canada Labour Code, Part II and paragraph 8.10(c) of the

On Board Trains Occupational Safety and Health Regulations were being

contravened: transportation employees that were required to perform

duties such as handling switches, uncoupling or riding on rolling stock

and any other similar tasks which may result in a hazard of injury to

the hands had to be provided with appropriate body cover. The

direction was confirmed in writing on February 21, 1995 (appendix 1).

The employer appealed the direction on February 23, 1995.

It is pertinent to note that, meanwhile, a similar direction had been

issued to CN North America, Laurentian District, Montreal, by Nathalie

Belliveau, on February 6, 1995. This direction was appealed by the

employer to the regional safety officer. The regional safety officer

confirmed this direction on August 21, 1995.

Submission by the employer's representative

A number of arguments were presented by counsel for the applicant to

the effect that the direction should be rescinded:

- the risk of injury or disease must result from skin contact and

not merely from exposure to natural variations in temperature; the

revision of section 8.10 of the Regulations, published in the Canada

Gazette Part II under registration SOR/95-105, makes this

distinction more evident;

- in the Regulatory Impact Analysis Statement which accompanied the

original publication of the On Board Trains Occupational Safety and

Health Regulations in the Canada Gazette Part II, in March 1987,

under registration SOR/87-184, it was stated under "Anticipated

Impact - Costs" that "The Regulations (...) will not impose any new

obligations on the operating position of the railway industry."

Supplying gloves to running trades employees is a significant new

cost;

- it is unusual that a standing operating practice within the

running trades, such as the provision of gloves by the employee

himself should only now be found to be covered by the Regulations,

some eight years after they came into force;

- there should be no finding that the Regulations impose upon the

employer an obligation to provide gloves or handwear to protect from

seasonal changes and in particular, cold weather conditions;

- the safety officer did not carry out a proper investigation: the

safety and health committee was not involved in his investigation;

furthermore, he made no inquiry about data regarding injuries to

hands or fingers, about worker's compensation or about injury

statistics in Northern Ontario District or Southern Ontario

District.

Alternatively, if the direction is confirmed, the applicant requests

that the direction be varied so that it be unequivocal that it applies

solely to the provision of seasonally appropriate hand protection.

Submission by the employees' representative

The representative for the employees presented the following arguments:

- the use of gloves is universal in the running trades; in the

course of their duties, their hands come in contact with equipment

which has burrs, which has a rough surface; sometimes, this

equipment is also covered with soot, dirt, fuel oil;

- the employees' representative, who is also an employee, stated

that gloves were supplied in most regions where he worked except at

Hornepayne;

- the On Board Trains Occupational Safety and Health Regulations

extend the protection provided by the Canada Labour Code to crew

members;

- the issue was discussed at the safety and health committee

meeting, but the company did not want to distribute gloves;

- risks to running trades are different from some other occupations

but can be as great;

- few injuries are reported because the use of gloves is universal;

- other people with similar duties are supplied with gloves.

Discussion

Section 8.10 of the Regulations which is at issue here reads:

8.10 Where there is a hazard of injury or disease to or through the

skin of a person in a work place, the employer shall provide every

person granted access to the work place with

(a) a shield or screen;

(b) a cream to protect the skin; or

(c) an appropriate body covering.

(as amended in Canada Gazette Part II, SOR/95-105)

The employer's argument appears to consider that running trades

employees wear gloves essentially for protection from temperature or

climate extremes. Consequently, because the temperature or climate

variations are not inherent to the work activities, but are due to the

fact that work is carried on outside, section 8.10 of the Regulations

does not apply and the direction should be rescinded. If this was

truly the case, I would tend to agree with the employer.

Actually, gloves are worn by running trades employees for protection of

their hands from rough and dirty surfaces when they perform duties such

as handling switches, coupling and uncoupling rolling stock, riding

rolling stock, tightening or releasing handbrakes and other similar

tasks. As a matter of fact, gloves are worn during the summer, which

demonstrates that gloves are not worn for protection from temperature

or climate extremes, but for protection of the hands from abrasion due

to rough surfaces and from contamination due to dirty or contaminated

surfaces.

Two other arguments raised by the employer have to do, one with the

Regulatory Impact Analysis Statement which was an appendix to the

original publication of the Regulations in the Canada Gazette Part II,

in March 1987 (SOR/87-184), the other with the delay between the

issuance of the Regulations and the issuance of the direction. In the

case of the Regulatory Impact Analysis Statement, the only explanation

I have was that this point was neglected, either through ignorance or

because it was considered a minor factor. In any event, even though

this is reasonable argument, the Regulatory Impact Analysis Statement

is not part of the Regulations and it cannot be used to limit the

application of the Regulations. It is recognized that there is a

contradiction between the two documents, but the Regulations take

precedence. Regarding the delay between the issuance of the

Regulations and the issuance of the direction, I would propose that the

safety officers were informed of the situation at a late date. But

again, the delay is no argument against the issuance of the direction.

As an example, the fact that someone has been speeding for ten years

without ever being caught does not make it legal and does not exempt

him from citation.

In the end, I believe that running trades employees wear gloves to

protect their hands from abrasion and from contamination when they

carry out duties such as handling switches, coupling and uncoupling

rolling stock, riding rolling stock, tightening or releasing handbrakes

and other similar tasks. Temperature is only a factor in the sense

that it is probably more convenient to use insulated work gloves during

the winter rather than removing winter mitts or gloves, putting on work

gloves to carry out a given duty and then, putting the gloves or mitts

back on.

As written, the direction properly emphasizes that it is the hands that

must be protected and they have to be protected from injuries that may

occur as a result of performing duties such as handling switches,

coupling and uncoupling rolling stock, riding rolling stock, tightening

or releasing handbrakes and other similar tasks. Consequently, I

believe the direction is specific enough to satisfy the employer.

Finally, it is only good management practice for the employer to

exercise adequate control over the supply process to prevent abuse and

it is not the purpose of this revision to prohibit such control.

Decision

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

by Safety Officer W. B. Armstrong to CN North America at Hornepayne,

Ontario, on the tenth of February 1995.

Decision given on February 27, 1996.

Bertrand Southière

Regional Safety Officer

APPENDIX I

TRANSPORT CANADA

IN THE MATTER OF THE CANADA LABOUR CODE,

PART II, - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1).

On February 10, 1995, the undersigned safety officer, following a

complaint from a transportation employee, conducted an inquiry in the

work place operated by CN North America, being an employer subject to

the Canada Labour Code Part II at Hornepayne, Ontario.

The said safety officer is of the opinion that the following provision

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

Paragraph 125(j) of the Canada Labour Code, Part II and Paragraph

8.10(c) of the On Board Trains Occupational Safety and Health

Regulations.

Transportation employees that are required to perform duties such as

handling switches, uncoupling or riding on rolling stock and any other

similar tasks which may result in a hazard of injury to the hands must

be provided with appropriate body cover.

Therefore, CN North America is HEREBY DIRECTED, pursuant to subsection

145(1) of the Canada Labour Code, Part II, to terminate the

contravention no later than

February 24, 1995.

Issued at Toronto, this 10th day of February 1995.

W.B. Armstrong

Safety Officer No. 2787

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-002

Applicant: Canadian National Railway Company

Ontario Region

KEYWORDS:

Running trades employees; hand protection; responsibility for supplying

work gloves

PROVISIONS:

Code: 125(j)

Regulations, On Board Trains Occupational Safety and Health

Regulations: 8.10(c)

SUMMARY:

A safety officer issued a direction to CN North America, at Hornepayne,

Ontario, that appropriate body cover had to be provided to

transportation employees that were required to perform duties such as

handling switches, uncoupling or riding on rolling stock and any other

similar task which could result in a hazard of injury to the hands.

The regional safety officer confirmed the direction.

The direction was originally issued following a similar direction which

had been issued to CP Rail in Montreal on January 21, 1994, and which

had been confirmed by the regional safety officer on July 7, 1994.