Archived - Decision: 98-009 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 given by a safety officer

Decision No.: 98-009

Applicant:BC Tel

Burnaby, B.C.

Represented by: R. Anderson, Counsel

Respondent: Telecommunications Workers Union

Represented by: Theodore C. Arsenault

Mis-en-cause: Todd Campbell

Safety Officer

Human Resources Development Canada

Before:Douglas Malanka

Regional Safety Officer

Human Resources Development Canada



Background:

On December 17, 1997, safety officer Todd Campbell issued a direction to BC TEL pursuant to subsection 145.(1) of the Canada Labour Code, Part II (hereafter referred to as "Part II" or the "Code.") The direction cited the employer for two contraventions of the Code and the Canada Occupational Safety and Health Regulations (hereafter referred to as the Regulations) in respect of the climbing procedures taught to and used by BC TEL employees when ascending and descending poles. According to the direction, a copy of which is attached, the employer was in contravention of paragraph 125.(v) of the Code[1], and paragraph 12.10(1)(a)(i) of the Regulations.[2]The direction also cited the employer for a contravention of paragraph 125.(q) of the Code[3], and paragraph 12.15(2) of the Regulations.[4]

The safety officer provided a copy of his report which was distributed to the parties prior to the hearing. The document will not be reproduced here, however, I retain the following facts from the documents and the safety officer's testimony at the hearing.

Safety officer Campbell testified that on October 29, 1997, a BC TEL employee was climbing a newly installed 20 meter high self supporting wooden pole using gaffs[5] and a linesman's body belt and linesman's safety strap (hereafter referred to as body belt and safety strap respectively). In order to climb above an antenna support located more than 2.4 meters from the base of the pole, that he had installed earlier, he unhooked his safety strap from one of the dee-rings on his body belt, and climbed past the two foot antenna support. When he cleared the bracket, he attempted to reconnect his safety strap to the dee-ring on his body belt. In doing so, he brought his body too close to the pole and his gaffs disengaged or "kicked out" of the pole. The employee subsequently fell approximately 10 meters to the ground and was injured. Safety officer Campbell said that the procedure of unhooking the safety strap from the body belt and climbing past an obstruction had been taught by the employer as part of an in-house training course entitled, "Safe Pole Climbing and Working Aloft." Safety officer Campbell opined that the employee would not have fallen, or that the risk of falling would have been much less, if he had been wearing his safety belt.

In his report, the safety officer noted that the employer's procedures make no mention of other options available to employees to climb around obstructions on poles. He stated also that the use of bucket trucks or lanyards attached to anchor points on the pole were options available to the employer. He also referred to a procedure known as "double belting"[6]

Safety officer Campbell acknowledged that he had not considered what is practiced in other jurisdictions when he issued his direction. However, he felt that he had no discretion relative to issuing a direction once he was aware of a contravention of Part II and/or the Regulations. He also confirmed that he had not made any investigation of the practical problems that might be associated with the practice of double belting or other possible devices.

Applicant's Witness:

Mr. Leigh, Corporate Safety and Environment Consultant, BC TEL testified that he has 20 years of experience climbing poles, and is a certified instructor of the courses entitled, "Safe Pole Climbing and Working Aloft" and, "Pole Top Rescue." He has taught the climbing courses at BC TEL in the past.

During the hearing, he presented the two videos, "One Step at a Time" and, "Pole Top Rescue." and reviewed various safety and health aspects in the videos. He explained that there are essentially two types of pole top rescue depending on the relative sizes of the victim and the rescuer. Where the rescuer's stature is greater than that of the victim, the rescue can be conducted without the rescuer removing his or her safety strap. However, if the victim's stature is greater than that of the rescuer, then a face to face rescue may be necessary. For this type of rescue, the rescuer would have to unhook his or her linesman safety strap and climb past the victim to reach the strand. He confirmed that the pole top rescue is taught in compliance with subsection 8.10(3) of the Regulations and that safety officer Campbell's direction precludes this type of rescue.

He testified that he conducted the employer's investigation of the accident. He reported that the injured employee acknowledged that he may not have "cut-in" properly with his gaffs before attempting to reattach his safety strap. Later, Mr. Leigh tried the double belting procedure referred to by safety officer Campbell. He indicated having several concerns relative to the use of the extra safety strap. For example, when the climber is descending the pole, the person's heel can get caught in the loop that the second safety belt forms when it is not in use and hanging from the body belt. This could cause a fall. He also confirmed that the body belt and safety strap worn by a climber when ascending or descending a pole are incapable of arresting a fall unless the safety strap catches on an obstruction on the pole. He acknowledged that the use of a second safety strap and the double belting process might be advantageous when wind is a factor or when working on very high poles (suggested 30 meters) where the pole diameter decreases the higher you climb.

He confirmed that BC TEL is evaluating the use of a retractable-type of cable device that could be used instead of a second safety strap. However, the testing is not complete. He did find that the retractable device can lock if the climber descends too quickly. This is a serious deficiency because it could cause the climber to loose his or her balance and possibly fall to the ground.

Mr. Leigh outlined the use of ladders in BC TEL. He indicated that there are jobs and situations where it is preferable to climb poles as opposed to transporting and using a ladder. Where ladders are used, a "C" hoop device is used which connects to the strand wire and provides fall-protection.

He estimated that there is approximately 750,000 poles in BC TEL, most of which are shared use poles. He testified that he conducted an unscientific survey of 333 poles in the city to determine what magnitude of the poles have obstructions. He described the types of obstructions encountered and estimated that approximately fifty percent of the poles in the city have obstructions whereas approximately fifteen percent of the rural poles have obstructions.

Respondent's Witness:

Mr. Williams is employed as a business representative of the Telecommunications Workers Union on leave from active service from BC TEL. He has been employed at BC TEL since 1981 and has experience on various aspects of outside plant.

He referred to BC TEL's "Administrative Guideline, No. 219.02" which is provided to employees. Mr. Williams said the document is relevant to this case because it defines "Support Structures (Public Right-of-Way and Private Property) as including poles, anchors, strand and conduit.

Submissions:

Applicant:

Mr. Anderson submitted two reports entitled, "Materials Filed On Behalf of BC TEL" and "Submissions On Behalf of BC TEL." Neither the documents nor the full text of the arguments will be reproduced here. However, they form part of the file and will be referred to in my decision.

In his oral submission, Mr. Anderson argued that BC TEL was not in violation of paragraph 125.(v) of the Code and paragraph 12.10(1)(a)(i) of the Regulations for the following reasons which were developed in his submission:

1) Section 12.10(1) has no application to "poles;" because they are not "unguarded structures."

2) Section 12.10(1) has no application to workers when they are ascending or descending "unguarded structures", temporary structures" or "ladders;"

3) Section 12.10(3) prescribes the use of linesman's body belt and linesman's safety strap as fall-protection system without any modifications or additions such as a second safety strap or a retractable belt;

4) The direction makes compliance with section 8.10(3)[7] of Part VIII, Electrical Safety, of the Regulations relative to BC TEL's face to face pole type rescue procedure;

5) The direction interprets 12.10(1) as making substantive changes from the predecessor Canada Protective Clothing and Equipment Regulations when no such changes were intended.

He further argued that if the employer is not in contravention of paragraph 125.(v) and 12.10(1)(a)(i) of the Code and Regulations respectively, then BC TEL is not in contravention of paragraphs 125.(q) and 12.15(2) of the Code and Regulations respectively.

Respondent:

As part of his submission, Mr. Arsenault submitted a copy of the collective agreement between BC TEL and the Telecommunication Workers Union. Neither the document nor the full text of his arguments will be reproduced here. However, they form part of the file and will be referred to in my decision.

Mr. Arsenault argued that there was no error on the part of safety officer Campbell when he issued his direction because BC TEL's current procedures do not meet the requirements in the Code and Regulations. He said that the practical problems that BC TEL has with the Code and Regulations is not a reason to excuse or exempt them from the legislative requirements. In fact, he suggested that I do not have authority to exempt BC TEL from the legislative requirements. He further indicated that BC TEL has a range of options to comply with the regulations through a complement of work practices and utilization of available types of fall-protection equipment for pole climbing. He added that BC TEL has the resources to resolve any problems that arise.

Finally, he reminded me that Part is remedial in nature to prevent occupational accidents and injury and I must give the regulations broad interpretation.

Decision:

Safety officer Campbell's direction included two items. The first item that I must decide is whether the employer, BC TEL, contravened paragraph 125.(v) of the Code and paragraph 12.10(1)(a)(i) of the Regulations because it did not ensure that its employees use fall-protection equipment when ascending and descending poles. For the second item, I must also decide if the employer contravened paragraph 125.(q) of the Code and paragraph 12.15(2) of the Regulations because it did not provide training and instruction necessary to protect the safety and health of its employees when ascending and descending poles because it instructed its employees to unhook their safety strap and climb around obstructions that are more than 2.4 meters above the base of the pole.

Item 1 OF THE DIRECTION:

To resolve the first issue, whether or not BC TEL contravened paragraphs 125.(v) and 12.12(1)(a)(i) of the Code and Regulations respectively, I must decide whether or not a telephone pole is an "unguarded structure" pursuant to paragraph 12.10(1)(a)(i). If I decide in the affirmative, then I must also decide if paragraph 12.10(1)(a)(i) applies when employees are ascending or descending poles.

In my opinion, the terms "elevated structure" and "unguarded structure" include a "pole." I agree with safety officer Campbell's view that, in the case of section 8.10 , the term "pole" is a subset of the term "elevated structure." There is nothing in section 8.10 or 8.11 to suggest any different treatment in the regulations relative to a "pole" or an "elevated structure." It appears that the use of the terms "pole" and "elevated structure" in sections 8.10 and 8.11 was to clarify that the requirement applied to both types of structures found in the cable, telecommunications and electrical energy distribution industry. Mr. Anderson held that paragraph 12.10(1)(a)(i) applies to "unguarded structures" and that this terminology does not apply to "poles." However, in my view, a structure is either "unguarded", or "guarded." "Poles" are normally "unguarded structures".

In the case of Regina versus Transport Provost, the Honourable Judge D. Stone commented on the literal and contextual meaning of the word "structure" as found in paragraph 12.10(1)(a)(i). While the definitions cited for the word "structure" were helpful, I did not find them to be definitive relative to telephone "poles". However, I noted that "structure" is often described as something built and affixed to or imbedded in land. With regard to the cases filed in Provost, Judge Stone observed that, "The seeming common thread through the cases filed on behalf of Provost is that as of 1986, a structure was regarded as an item of realty or was, at least temporarily, fixed to, on or under the land..."

Moreover, a "pole" used in the telecommunications industry is not something that is embedded in the ground and left to stand on its own. Instead, devices such as support brackets, wires, strands, guy wires and antennae are attached to the "poles", and each "pole" becomes part of the larger complex telecommunication network that provides both a physical path for the telecommunication signals, and a structure that can resist environmental forces. This is even more true for joint use poles where telecommunication companies share the use of poles with companies who distribute cable services and electrical energy.

In addition to the above rationale, paragraph 12.10(2)(c)[8] specifies that the components of a fall-protection system referred to in paragraph 12.10(1)(a)(i) must meet the CSA Standard Z259.3-M1978, Lineman's Body Belt and Lineman's Safety Strap (date also specified in the subsection). This standard applies to the types of body belts and safety straps used by BC TEL employees ascending and descending poles, and BC TEL confirmed at the hearing that their body belts and safety straps comply with the standard.

Finally, I note that BC TEL considers the poles in its outside plant as structures as evidenced by the fact that it defines a "structure" to included a "pole" in its own administrative procedures. I also note that a comment found in a footnote at the bottom of page 4 of the course entitled, "Safe Pole Climbing Working Aloft" reads as follows:

"NOTE !!! LABOUR CANADA RULES REQUIRE US TO CLIMB AT ALL TIMES, WHEN WE ARE TEN FEET OF MORE FROM THE GROUND, WITH OUR SAFETY STRAPS AROUND THE POLE, EXCEPT WHEN WE ARE REQUIRED TO PASS AN OBJECT SUCH AS A STRAND OR A SIDEWALK GUY. WE TEACH YOU TO CLIMB FIRST WITHOUT YOUR BELTS SO THAT YOU WILL BE ABLE TO BETTER BALANCE YOURSELF DURING TIMES OF BELT TRANSFERS"

For the above reasons, it is my view that a "pole" is a "structure" for the purposes of paragraph 12.10(1)(a)(i).

Having resolved the first issue, I turn my attention to the question of whether paragraph 12.10(1)(a)(i) applies when employees are ascending or descending poles.

During the hearing, Mr. Anderson acknowledged that an employee is working when they are ascending or descending a pole. However, he argued that paragraph 12.10(1)(a)(i) applies only when an employee works from an unguarded structure that is, itself, located 2.4 meters above the nearest permanent safe level. He noted, to the contrary, that paragraph 12.10(1)(c)[9] of the section applies when it is the employee who is working at a height of 2.4 meters above the nearest permanently safe level. He said that the language in paragraph 12.10(1)(a)(i) makes no sense when applied to a "pole.

I do not share Mr. Anderson ‘s interpretation that paragraph 12.10(1)(a)(i) applies only to "unguarded structures that are located 2.4 meters above the nearest permanent safe level." In my view, paragraph 12.10(1)(a)(i) applies when an employee is either working on a structure that is 2.4 meters above the nearest permanent safe level or at any level on a unguarded structure more than 2.4 meters above the nearest permanent safe level. Again, this interpretation is consistent with the fact that paragraph 12.10(1)(c) specifies that the fall-protection system provided by the employer must comply with CSA Standard Z259.3-m1978, Lineman's Body Belt and Lineman's Safety Strap. Since there is agreement that the employee is working for the employer at all times when on duty, I must interpret that paragraph 12.10(1)(a)(i) applies when employees are ascending or descending poles.

For these reasons, I HEREBY CONFIRM item one of the direction.

Having so decided, Mr. Anderson indicated that BC TEL would have practical problems if I decided that paragraph 12.10(1)(a)(i) applied to employees when ascending and descending poles. For example, employees would be required to use two safety straps in order to pass obstructions. This would constitute a risk to employees because of the additional weight of the second safety strap, the difficulty of dealing with an extra clasp on the body belt while working at a height and the danger of the employee's feet becoming entangled in the second safety strap. However, in response, I note that the Telecommunications Workers Union concurs with safety officer Campbell's direction and in doing so must feel that advantages of double belting out weigh the concerns. They also put special emphasis on the use of man lift vehicles and lanyards.

I also note that a BC TEL memorandum, dated December 17, 1986, that was filed with this Office specifies that:

"Should circumstances arise where it is necessary to utilize unqualified personnel it should be clearly understood that they must be secured at all times. This means "double belting", approved safety "life" line, or approved fall-protection systems. It is important that we observe all aspects of safety and fully comply with the regulations established in the Canada Labour Code."

This suggests to me that BC TEL was aware that there are increased risks associated with unhooking the safety strap to pass obstructions, but is confident that the risk is minimized through proper training. However, I suggest that this is not authorized by paragraph 12.10(1)(a)(i). Despite BC TEL's noteworthy commitment to occupational safety and health and quality training, accidents continue to occur where employees have removed their safety straps to climb past obstructions.

Mr. Anderson's argued that section 12.10 prescribes a fall-protection system without modifications such as a second safety strap or retractable belt. However, in my view, subsection 12.10 does not appear to address obstructions on the poles used in the telecommunications industry. It is the presence of obstructions on the poles that requires the employer to take additional measures to comply with paragraph 12.10(1)(a)(i). As safety officer Campbell indicated to the employer, the direction was not to require the use "double belting" to complying with paragraph 12.10(1)(a)(i). Other options available to the employer could include bucket trucks, or lanyards attached to anchor points. It is for the employer to decide how to best protect the safety and health of its employees relative to the obstructions.

Mr. Anderson also submitted that the direction would make compliance with subsection 8.10(3)[10] of the Regulations impossible. He said that in the face to face pole top rescue procedure, the rescuer must unhook his or her safety strap and climb past the victim to reach the strand, otherwise the rescue is impossible. This of course is a concern to me. However, Mr. Leigh advised that this type of pole top rescue procedure is only required where the stature of the rescuer is greater than that of the victim, and that the pole top rescue kit is not supplied to every employee in the company. He also indicated that BC TEL has not investigated other techniques for providing fall-protection in face to face pole top rescues. I am confident that BC TEL, in consultation with its safety and health committee, can resolve the concern.

Finally, Mr. Anderson argued that the direction issued by safety officer Campbell interprets paragraph 12.10(1)(a)(i) as making substantive change from the predecessor Canada Protective Clothing and Equipment Regulations when no such change was intended.He said that senior officials of Human Resources Development Canada, (then Labour Canada) advised them in 1985 and 1986 that the amendments would not result in substantive changes. I can only suggest that BC TEL raise this issue with Human Resources Development Canada as it is not something that I can consider.

ITEM 2 OF THE DIRECTION:

Mr. Anderson stated during the hearing that BC TEL accepts that it instructed the injured employee how to transfer past obstructions and that is what the employee was doing when he fell.Therefore, he acknowledged that, if the company contravened paragraphs 125.(v) and 12.10(1)(a)(i) of the Code and Regulations respectively, then they contravened paragraphs 125.(q) and paragraph 12.15(2) of the Code and Regulations respectively.

When I look at the page 11 of the "Safe Pole Climbing and Working Aloft" course, under the heading, "Transferring Your Belt Around An Object", I see that BC TEL does, in fact, instruct its employees to unhook their safety strap and climb past an obstruction. Item, 7 found on page 11 of the course reads as follows"

"(7) Place your left hand on the pole and take as many free hand steps, up or down, as are required to safely pass the object.."

[Words bolded for emphasis.]

As determined by safety officer Campbell, this is in contravention of paragraph 125.(q) and paragraph 12.15(2) of the Code and Regulations respectively. This being the case, I HEREBY CONFIRM the second item of the direction.

Decision rendered September 2, 1998.

Doug Malanka

Regional Safety Officer

Comments:

The following comments do not form part of the decision but are provided for consideration.

In reviewing this case, I was persuaded, on balance, that paragraph 12.10(1)(a)(i) applied when employees are ascending and descending poles.However, I found the language in section 12.10 somewhat ambiguous relative to work on telephone poles where employees encounter and must deal with obstructions on the poles. This could be because the Regulations are for general application and not intended to specify in respect of every work situation that arises and is subject to Part II and the Regulations. Regardless, BC TEL has raised two concerns relative to the use of "double belting" and pole top rescues that, they may wish to raise with HRDC.

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO EMPLOYER UNDER SUBSECTION 145(1)

On December 8th, 1997, the undersigned safety officer conducted an inquiry regarding the work place operated by BC TEL, being an employer subject to the Canada Labour Code, Part II, at 3777 Kingsway Avenue, Burnaby, B.C., the said work place being sometimes known as Head Office.

The said safety officer is of the opinion that the following provisions of the Canada Labour Code, Part II, are being contravened:

Paragraph 125(v) of the Canada Labour Code Part II, and paragraph 12.10(1)(a)(i) of the Canada Occupational Safety and Health Regulations:

When climbing poles and encountering obstructions more than 2.4 meters above the base of the pole, employees unhook their linesman's belt and climb around the obstruction. This action results in the employee working from an unguarded structure, more than 2.4 meters above the nearest permanent safe level, without a fall protection system.

Paragraph 125(q) of the Canada Labour Code Part II, and paragraph 12.15(2) of the Canada Occupational Safety and Health Regulations:

The employer instructs the employees, when climbing poles and encountering obstructions, including obstructions more than 2.4 meters above the base of the pole, to unhook their linesman's bled and climb around the obstruction. This instruction does not ensure the safety and health at work o the employees, and permits the employees to violate the prescribed requirements concerning the use of fall protection systems.

Therefore, you are HEREBY DIRECTED, pursuant to subsection 145(1) of the Canada Labour Code, Part II, to terminate the contraventions no later than January 16th, 1998.

Issues at Surrey, this 17th day of December 1997.

Todd Campbell

Safety Officer

1790

To: BC Tel

Head Office

3777 Kingsway Avenue

Burnaby, B.C.

V5H 3Z7

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision:98-009

Applicant: BC Tel

Respondent: Telecommunications Workers Union

KEY WORDS:

Fall-protection systems, poles, structures, elevated structures, unguarded structures, obstructions, linesperson's body belt, linesperson's safety strap, double belting, retractable belts, instruction, training, pole top rescue, telecommunications

PROVISIONS:

Code: 125.(q) and (v), 145.(1)

Regulations: 8.10, 8.11, 12.10(1) and (2), 12.15(2)


SUMMARY:

An employee was climbing a newly installed 20 meter high self supporting wooden telephone pole using his gaffs and linesman's body belt and linesman's safety strap.In order to climb above an antenna support located more than 2.4 meters from the base of the pole, he unhooked his safety strap and climbed past the two foot antenna support. When he cleared the bracket, he attempted to reconnect his safety strap to his body belt. In doing so, he brought his body too close to the pole and his gaffs disengaged or "kicked out" of the pole. The employee subsequently fell approximately 10 meters to the ground and was injured. A safety officer investigated the accident and, following his investigation, issued a direction to the employer pursuant to subsection 145.(1) of the Canada Labour Code, Part II. The direction cited the employer for contravening paragraphs 125.(q) and (v) of the Code, and paragraphs 12.10(1)(a)(i) and 12.15(2) of Canada Occupational Safety and Health Regulations in respect of the climbing procedures taught to and used by their employees when ascending and descending poles.

The Regional Safety Officer (RSO) confirmed the direction and, in so doing, confirmed that paragraph 12.10(1)(a)(i) applies to poles as unguarded structures, and applies when employees are ascending and descending poles.



[1] Paragraph 125.(v) of the Code reads:

"125.v) ensure that every person granted access to the work place by the employer is familiar with and uses in the prescribed circumstances and manner all prescribed safety materials, equipment, devices and clothing; and..."

[2] Paragraph 12.10(1)(a)(i) of the Regulations reads:

"12.10(1) Where a person, other than an employee who is installing or removing a fall-protection system in accordance with the instructions referred to in subsection (5), works from

(a) an unguarded structure that is

(i) more than 2.4 m above the nearest permanent safe level, or...

the employer shall provide a fall-protection system."

[3] Paragraph 125.(q) of the Code reads:

"125.(q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure the safety and health at work of that employee;..."

[4]Paragraph 12.15(2) reads:

"12.15(2) Every employee who uses protection equipment shall be instructed and trained in the use, operation and maintenance of the equipment."

[5] "gaffs" - steel point of climbing iron used by telephone linesperson.

[6] "double belting" - denotes the use of two safety straps so that the linesperson is always connected to the pole when he or she has to transfer around an obstruction.

[7] Section 8.10(3) of the Regulations reads:

"8.10(3) No employee shall work on any pole or elevated structure referred to in subsection (1) unless he has been instructed and trained in the rescue of employees who may be injured in the course of the work."

[8] Subsection 12.10(2)(c) reads:

"12.10(2)(c) The components of a fall-protection system shall meet the following standards:

...(c) CSA Standard Z259.3-M1978, Lineman's Body Belt and Lineman's Safety Strap, the English version of which is dated September, 1978, as amended to April, 1981 and the French version of which is dated April, 1980, as amended to April, 1981."

[9] paragraph 12.10(1)(c) reads:

"12.10(1) Where a person, other than an employee who is installing or removing a fall-protection system in

accordance with the instructions referred to in subsection (5), works from

...(c) a ladder at a height of more than 2.4 m above the nearest permanent safe level where, because of the nature of the work, that person cannot use one hand to hold onto the ladder,

the employer shall provide a fall-protection system."

[10] Subsection 8.10(3) reads:

"8.10(3) No employee shall work on any pole or elevated structure referred to in subsection (1) unless he has been

instructed and trained in the rescue of employees who may be injured in the course of the work."

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