An employer struggling with how to comply with a Ministry of Labour inspector's safety compliance order cannot expect the MOL to identify ways for it to comply, the Ontario Labour Relations Board has held.
The inspector issued an ergonomic compliance order requiring the employer to ensure that wheeled book cases used for book fairs were moved in a way that did not endanger the employees. The inspector decided that the "push forces" required to move the book case up the ramp were greater than permitted in ergonomic data known as "Snook Tables".
The employer argued that the inspector had "refused to identify ways or means" for the employer to comply with the order. The OLRB decided that the inspector "was under no obligation to do so". The inspector identified the problem, and it was for the employer to "derive a compliance plan that is most sensible for its operations".
The employer also argued that there were no ergonomic thresholds set out in the regulations under the Occupational Health and Safety Act, and that the inspector had simply relied on "her professional judgement, as an ergonomist". The OLRB disagreed, holding that the inspector had based her compliance order on a violation of section 45(a) of the Industrial Establishments regulation under the Occupational Health and Safety Act which requires that materials be moved in a way that does not endanger the worker. There was a legal basis for the compliance order.
The OLRB therefore rejected the employer's request to suspend the operation of the compliance order pending a full hearing of the employer's appeal.
There appears to be a trend towards Ministry of Labour inspectors issuing more ergonomic compliance orders, which can often be difficult to comply with. This case demonstrates that the employer, not the Ministry, will be tasked with finding a way to comply with the order.
Scholastic Book Fairs Canada Inc. v. Aguilar, 2012 CanLII 49789 (OLRB)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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