Archived - Decision: 04-005 Canada Labour Code Part II
Occupational Health and Safety

This case was decided by appeals officer Michèle Beauchamp on the basis of the documents received from occupational health and safety officer Jean-Pierre Joly and the applicants.

Occupational Health and Safety Officers

Jean-Pierre Joly, Human Resources Development Canada (HRDC), Labour Program, Quebec Region
Michel Germain, HRDC, Labour Program, Quebec Region

[1]  This case concerns an appeal filed pursuant to subsection 146(1) of the Canada Labour Code Part II on August 15, 2003 by Yvon D'Amour and Gilles Pelletier, respectively employee co-chair and employee member of the Local Health and Safety Committee (LHSC) of the Canadian Forces Language School (CFLS), Detachment Saint Jean, Quebec.

[2]  The appeal reads as follows:

Appeal filed pursuant to subsection 146(1) of the Canada Labour Code Part II in response to a decision, dated 18 July 2003, rendered by an HRDC health and safety officer.

First of all, we feel that, in view of the authority that the legislation gives the health and safety officer, the officer was entitled to order the employer to implement the officer's directions instead of simply asking the employer to do so. We ask that he do so.

Moreover, we believe that the intent of the Act is frustrated when the health and safety officer gives the employer the right to decide on the number of members comprising the committee it sets up. This factor subjects one of the parties to the other one and is not consistent with the equal status of parties that the Act implies. Such an interpretation of subsection 135(1) would invalidate the exercise of the right granted under paragraph (b)(ii) of subsection 135.1(1). We ask that this interpretation of subsection 135(1) respect both the spirit and the letter of the law.

The third paragraph of the text of the decision states: "[translation] With respect to the dissolution of the former OHS committee and the establishment of a new structure because of new rules concerning number of members and duration of mandates, we conclude that such a structure is not authorized to function and that this approach is in conflict with the legislation." We therefore believe that the health and safety officer should have specified that the meetings held by the committee were illegal and that its decisions are null and void. We ask that this be confirmed in writing.

We also consider that the health and safety officer limited himself to simply counting the number of meetings held in 2002, without taking into account the fact that subsection 135(10) stipulates that these meetings shall take place at "regular intervals". Yet, in 2002, there were no meetings in July, August, September, November or December, and the October meeting did not finish. We ask that subsection 135(10) be complied with in its entirety.

Lastly, we believe that the reason that the local health and safety committee at CFLS Detachment St Jean has not been operational since October 7, 2002 is because HRDC mishandled the case. We ask that this matter be investigated.

We ask to be heard.

This appeal is not confidential.

[3]  This appeal results from a letter sent by health and safety officers Jean-Pierre Joly and Michel Germain on July 18, 2003 to the members of said local committee in response to two complaints filed by Yvon D'Amour in his capacity as the committee's employee co-chair. Although these complaints were not dated, they were evidently faxed on May 12, 2003.

[4]  These complaints read as follows:

Complaint filed with the HRDC Labour Branch concerning a case of non compliance with Canada Labour Code Part II, section 135.1

This complaint was filed on the grounds that the employer became involved in the designation of members representing employees on the Local Health and Safety Committee (LHSC) at Canadian Forces Language School (CFLS) Detachment Saint Jean, thereby contravening Canada Labour Code Part II, section 135.1.

The employer wanted to be the one to designate the members representing employees on the CFLS LHSC even though Local 10377 of the Public Service Alliance of Canada (PSAC), representing approximately 90% of CFLS employees, had informed the employer in writing of the names of the two individuals elected by its members to fill the two employee seats on the committee that Local 10377 had obtained after difficult negotiations with the employer, even though the local represents three employee groups with very different working conditions.

I therefore request that an HRDC labour affairs officer be involved. I also want to be heard before the latter makes a decision.

This complaint is not confidential.

Complaint filed with the HRDC Labour Branch for non-compliance with Canada Labour Code Part II, subsection 135(10)

This complaint is filed on the grounds that the Local Health and Safety Committee (LHSC) at Canadian Forces Language School (CFLS) Detachment Saint Jean has not held regular and complete meetings since June 2002, thereby contravening Canada Labour Code Part II, subsection 135(10).

In addition to failing to respect the spirit and letter of the Canada Labour Code Part II, this situation has significantly restricted the committee's role at the CFLS.

I therefore request that an HRDC labour affairs officer be involved so that this situation can be rectified as soon as possible.

This complaint is not confidential.

[5]  Health and safety officers Joly and Germain duly followed up on the complaints filed by Yvon D'Amour and met with the parties involved. The officers conducted a thorough investigation and then, on July 18, 2003, wrote a letter to the members of the CFLS Local Health and Safety Committee, explaining the findings of their investigation.

[6]  In addition, on July 24, 2003, health and safety officer Germain wrote to Maj J.R. Tremblay, the CFLS Commandant, relating the circumstances that had led to the investigation and the findings that he and health and safety officer Joly had reported in their letter of July 18.

[7]  It was this letter of July 18 by health and safety officers Joly and Germain that was the subject of the appeal by Yvon D'Amour and Gilles Pelletier.

[8]  Only two provisions in the Canada Labour Code Part II authorize the appeals officer to hear an appeal, these being subsections 129(7) and 146(1). These provisions address two entirely different situations.

[9]  Under subsection 129(7), an employee who refuses to work may appeal the decision of no danger rendered by the health and safety officer investigating the employee's refusal. This subsection reads as follows:

129(7)  If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision.

(underling mine)

[10]  Under subsection 146(1), this appeal shall pertain to the direction issued by the health and safety officer and shall be filed by an employer, an employee or a trade union that feels aggrieved by the direction. The subsection reads as follows:

146(1)  An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing.

[11]  In this case, the appeal filed by Yvon D'Amour and Gilles Pelletier does not concern a decision of no danger by health and safety officers Joly and Germain as a result of an investigation of refusal to work since there was no refusal to work.

[12]  Nor does the appeal concern any directions by health and safety officers Joly and Germain given as a result of their investigation of complaints by Yvon D'Amour that aggrieved the employer, employee or trade union concerned, since the health and safety officers did not give the employer any direction.

[13]  Consequently, as an appeals officer authorized by the Canada Labour Code Part II, I have no legal authority to hear this case, since it does not relate to a decision of no danger or the issuance of a direction.

[14]  Finally, I would like to point out to Messrs D'amour and Pelletier that if they still consider that the local health and safety committee is inoperative and wish to have this matter investigated, they are no doubt free to direct their concerns to the attention of the appropriate manager in HRDC's Labour Branch.

[15]  The case is dismissed.

_______________________
Michèle Beauchamp
Appeals Officer

Summary of Appeals Officer's Decision