Archived - Decision: 96-006 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: 96-006
Applicant: CN North America
Charny, Quebec
Represented by: L Michel Huart, counsel
Interested party: Brotherhood of Maintenance of Way Employees
Represented by: André Trudel, General Chairman
Mis-en-cause: Claude Léger
Safety Officer
Human Resources Development Canada
Before:Serge Cadieux
Regional Safety Officer
Human Resources Development Canada
A hearing was held at Ste-Foy, Quebec on March 28, 1996.
Background
Around 2:30 p.m. on August 29, 1995, Mr. Christian Harvey, a CN
employee who was working on scaffolding erected under the bridge at
mileage 97.6 of the Montmagny subdivision, exercised his right to
refuse to perform "dangerous" work. Mr. Harvey was "refusing to work
under a railway bridge while a train was crossing the bridge because of
safety risks owing to the fact that objects and hazardous substances
could fall on him and injure him". It should be noted that, in this
case, the employee did not express any concern about working on
scaffolding under the bridge and that the safety officer's
investigation was confined to the reason for refusing to work given by
Mr. Harvey.
Safety officer Claude Léger intervened in this case on August 30, 1995
around 8:00 a.m. The employee was not present during this
investigation because he was apparently ordered off the work site
following his refusal to work. The safety officer's investigation
report stated that no representative of the employee was present at the
scene of the refusal to work. The safety officer nevertheless decided
to continue his investigation and met with Mr. Morel, supervisor of
structural works for CN. He told the safety officer that "based on his
work experience and to his knowledge, no train part and no hazardous
substance fell on employees when they were working under a bridge while
a train was crossing the bridge. Moreover, in Mr. Morel's opinion, the
risk of a hazardous substance spilling or escaping while a train was
crossing the bridge was extremely low.
The safety officer stated that, during his investigation, he noted the
following facts:
- the bridge in question is a single-track bridge;
- the deck of the bridge is approximately 17 feet 2 inches wide and
the scaffolding located under the bridge was approximately 17 feet 6
inches wide;
- the scaffolding was installed directly beneath the bridge; one
section was approximately 10 feet 3 inches tall and another section
was approximately 12 feet 4 inches tall (measurements taken between
the floor of the scaffolding and the base of the railway ties);
- there is a space of approximately 4 inches between each of the
bridge's ties;
- trains are ordered to reduce their speed to a maximum of 20
miles/hour when crossing a bridge;
- the work being done on the scaffolding installed beneath the
bridge stopped when the Rule 42 foreman announced that a train was
going to cross the bridge;
- the employees remained on the scaffolding beneath the bridge while
trains were crossing it;
- there were pieces of crushed stone approximately 2 inches in
diameter on the beams supporting the ties and these stones fell onto
the scaffolding when a train crossed the bridge, according to the
testimony of a witness;[1]
- no measure is taken by the employer just prior to a train's
crossing the bridge to ensure that no object or any other substance
can fall during the crossing;
- no device or material such as wood, screening, etc. was installed
on or underneath the deck of the bridge to prevent any object or
substance from falling between the bridge's ties and reaching the
scaffolding.
The safety officer made the following four specific observations:
- parts, objects or substances forming part of or being transported
by trains can fall from moving trains;
- there are stones lying on the ties of the bridge and these stones
can move and fall while trains are crossing the bridge;
- no specific measure is taken by the employer to ensure that no
object or substance being transported by trains can fall from the
trains while the latter are crossing the bridge;
- the location of the scaffolding at the time, i.e., directly
beneath the deck of the bridge, did not did allow the employees to
take cover while a train was crossing the bridge.
Based on the above four specific observations, the safety officer
decided that there was a danger to Mr. Harvey in working under such
conditions. He issued a direction (APPENDIX) under paragraph 145(2)(a)
of the Canada Labour Code, Part II (hereinafter the Code). Moreover,
at the hearing in the case, the safety officer explained that the
direction issued was in keeping with the intent of subsection 3.13(1)
of the Canada Occupational Safety and Health Regulations (hereinafter
the Regulations).
Submission on behalf of the employer
Mr. Huart's detailed arguments were entered in the record. He stated
that CN's records revealed that, during approximately 850,000 hours of
work performed under similar conditions, there had been no accident
associated with the type of danger described by the safety officer.
Moreover, Mr. François Laporte, loss control specialist, estimated the
probability of an accident of the type described above occurring at
10-20, which is an infinitesimal risk.
Moreover, if a piece of equipment came loose from a moving train, or a
rock[2] managed to fall through one of the spaces separating the ties -
and these spaces were only four inches wide - the movement and rubbing
between the ties would reduce the speed at which the object fell,
thereby reducing the impact of its fall. In fact, even if an object
was thrown up by the movement of the train, it would probably be
directed to the side of the track, and not downward.
Mr. Huart pointed out at the hearing in this case that it was virtually
impossible for a hazardous substance being transported by train to
escape from tank cars because of safety devices specifically designed
to prevent such leakages. For example, tank car valves were equipped
with bells that prevented leakages from occurring. The safety officer
admitted that he was not familiar with the devices that these tank cars
were required to carry.
Mr. Huart noted that, insofar as a real danger was concerned, Mr.
Harvey did not provide any real evidence to support his reason for
refusing to work. Moreover, Mr. Harvey had been working for years on
these bridges and had never before expressed any fear about a danger of
injury. Mr. Richard Gauthier, supervisor of the site, stated that when
Mr. Harvey refused to work, he was in the centre of the bridge on the
scaffolding and was cutting some rivets. Mr. Gauthier stated that Mr.
Harvey, like all the other employees, had been informed of the
application of Safety Rule 42 to this workplace. Under this rule,
communication is established between the train crew and an employee on
the ground where the work is being done. The train cannot cross the
bridge until it receives permission to do so from the designated
employee on the ground. At that point, work stops until the train has
crossed the bridge. The train's speed at that point is approximately
20 miles/hour.
Finally, the safety officer neglected to take into account the fact
that employees working on scaffolding wear personal protective
equipment that should be sufficient to protect them should any
material, like stones lying on the track, fall between the ties.
Submission on behalf of the employee
Mr. Trudel was of the view that one should not wait until an accident
happens to act even if the probability of an accident happening is
infinitesimal. Installing sheets of plywood the width of the bridge
would suffice to protect employees because, in some cases, it was
almost impossible to leave the work site under the bridge. Moreover,
the company's attitude in this case was not beyond reproach.
Mr. Harvey was ordered off this work site, whereas in other situations,
employees were offered other work assignments. In addition, Mr. Trudel
argued that the situation must be viewed from another angle. If, for
example, one was dealing with a bridge of more than 200 feet, would
measures be necessary? According to Mr. Trudel, the regional safety
officer's decision should reflect this consideration.
Decision
The question to be answered in this case is the following: at the time
of the safety officer's investigation, did Mr. Harvey's workplace
present such dangers that he was justified in refusing to work there
until the situation was rectified? In fact, it was the Federal Court
of Appeal that clarified the safety officer's role in Bonfa v.
Minister of Employment and Immigration, decision No. A-138-89, in
which Mr. Justice Louis Pratte wrote as follows:
"...the function of the safety officer is solely to determine
whether, at the time he does his investigation, that place presented
such dangers that employees were justified in not working there."
Consequently, the safety officer had to determine whether, at the time
he did his investigation, i.e., on August 30, 1995 around 8:00 a.m.,
Mr. Harvey's workplace presented such dangers, namely, the possibility
of objects and hazardous substances falling on him and injuring him,
that he was justified in not working there. I had occasion to deal
with the notion of danger in Air Canada v. Canadian Union of Public
Employees, unreported decision No. 94-007 (R), in which I wrote as
follows:
In order to answer these questions, I must consult the definition
of the word "danger" in subsection 122(1) of the Code and apply
this definition in light of the case law. "Danger" is defined as
follows:
"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.
(underlining added)
The courts have had many opportunities to interpret the scope of
the term "danger". From this case law two extremely important
points have emerged that have guided me in my decision.
The first point is that the danger must be immediate. Thus, the
expression "before the hazard or condition can be corrected" has
been associated with the concept of "imminent danger" that
existed before the Code was amended in 1984. In Pratt, the
Vice-Chairman of the Canada Labour Relations Board, Hugh R.
Jamieson, wrote:
"...Parliament removed the word "imminent"from the
concept of danger ... but replaced it with a definition
that has virtually the same meaning."
The second point I take from a large number of decisions is that
the employee's exposure to the hazard or situation must be such
that the likelihood of injury is obvious. Accordingly, the
danger must be more than hypothetical, or there must be more
than a small probability of its becoming a reality. The danger
must be immediate and real, and no doubt must remain regarding
its imminence. It must be sufficiently serious to justify, in
the case under consideration, discontinuation of use of the
seats for flight attendants."
I draw the following conclusions from the instant case:
- Mr. Harvey was not present during the safety officer's
investigation and was not therefore in a situation that posed a
danger at the time;
Note: This point was not debated before me.However, this
raises some very serious questions concerning the relevance for
the safety officer of pursuing his investigation based on a
refusal to work under such conditions.
- Mr. Harvey is an employee who has been working under the same
conditions for a number of years and has never sustained any
injuries;
- CN's records indicate that, during 850,000 hours of work, there
have never been any accidents reported concerning the dangers
alleged by Mr. Harvey, the danger being almost nil at the time;
- Mr. Harvey was beneath the centre of the bridge when he refused to
work, and this eliminates the risk of injury from falling stones,
these stones being found only on the first ten ties of the bridge;
- Rule 42 was in effect whenever a train crossed the bridge, and
this significantly reduced the train's speed and halted work on the
scaffolding;
- the risk of toxic substances leaking is minimal and highly
unlikely because the valves of the tank cars are equipped with
protective devices. With regard to the discharge of fecal matter
from passenger cars, directives are in effect that prohibit the
responsible railways from engaging in such practices; and
- all the employees, including Mr. Harvey, wear personal protective
equipment, i.e., helmets, protective footwear, work gloves, etc., in
the workplace. Only the face is exposed, but through the
application of Rule 42, employees stop work while the train is
crossing the bridge and do not have to work looking up.
Note: There was no discussion, in this case, of the wearing of
safety goggles by employees required to look up while working. I
am therefore assuming that this personal protective equipment is
worn where the situation warrants.
Finally, I am of the opinion that subsection 3.13(1) has no application
in the instant case. This provision reads as follows:
3.13 (1) Where there is a hazard that tools, equipment or materials
may fall onto or from a temporary structure, the employer shall
provide a protective structure or a safety net to protect from
injury any employee on or below the temporary structure.
There was no tool or piece of equipment on the bridge that could have
fallen through the openings between the ties. With regard to
materials, this term, as defined in Webster's New World Dictionary,
1988 revised edition, must be taken to mean "implements, articles,
etc. needed to make or do something". It was established that no piece
of material small enough to fall through the openings was present on
the bridge when the safety officer did his investigation.
Based on these findings, I conclude that there was no danger to Mr
Harvey, the only employee to have alleged that a danger existed, when
the safety officer did his investigation. I conclude that the danger
that Mr. Harvey feared and that the safety officer confirmed was based
on a situation that had no factual basis and that was extremely
hypothetical. The alleged danger was not therefore real, or immediate,
and there was very little likelihood of its becoming a reality.
Consequently, the situation investigated by the safety officer did not
warrant the directions issued. For all these reasons, I HEREBY RESCIND
the directions issued under paragraph 145(2)(a) of the Code by safety
officer Claude Léger on September 5, 1995 to CN North America.
Decision rendered on April 16, 1996
Serge Cadieux
Regional Safety Officer
APPENDIX
IN THE MATTER OF THE CANADA LABOUR CODE
PART II - OCCUPATIONAL SAFETY AND HEALTH
DIRECTION TO THE EMPLOYER UNDER PARAGRAPH 145(2)(a)
On August 30, 1995, the undersigned safety officer conducted an
investigation in the workplace located at bridge 97.60 of the Montmagny
subdivision and operated by CN North America, an employer subject to
Part II of the Canada Labour Code, and located at 2600, avenue de la
Rotonde, Charny (Québec), G6X 2M1.
The said safety officer is of the opinion that the situation that
exists in the place in question constitutes a danger to an employee at
work, namely:
That whenever a train crosses bridge 97.60 of the Montmagny
subdivision, the employees on the scaffolding under the said
bridge are exposed to falling objects or other substances that
could cause injury.
Consequently, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a)
of Part II of the Canada Labour Code, to immediately take measures
for guarding the source of the danger.
Issued at Montreal, this 5th day of September 1995.
Claude Léger
Safety Officer
No. 1778
TO: CN North America
2600, avenue de la Rotonde
Charny (Québec)
G6X 2M1
SUMMARY OF THE DECISION OF THE REGIONAL SAFETY OFFICER
Decision no.: 96-006
Applicant: CN North America
Interested party: Brotherhood of Maintenance of Way Employees
KEY WORDS:
Rule 42, bridge, scaffolding, ties, stones, ballast, personal
protective equipment, absent employee, refusal, material.
PROVISIONS:
Code: 145(20(a)
Regs: 3.13(1)
SUMMARY:
A safety officer concluded that an employee of CN was in a situation
that constituted a danger. The danger consisted of the fact that it was
dangerous to work on scaffolding under a railway bridge while a train
was crossing the bridge because objects or hazardous substances could
fall on the said employee and injure him.
Upon review, the regional safety officer concluded that the alleged
dangers were not immediate or real, but merely hypothetical. Moreover,
the employee who had refused to work was not present at the work site
when the safety officer conducted his investigation, and this same
employee had years of experience working on this type of site without
ever having sustained an injury. The regional safety officer also
determined that subsection 3.13(1) did not apply in the instant case.
No danger existed at the time the safety officer conducted his
investigation and the regional safety officer RESCINDED the
direction.
It was impossible to identify the witness in question and little credibility can be given to this testimony.
[2] It was established that there was ballast, i.e., the crushed stone on which the ties rest, on the first ten ties at each end of the bridge.
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