Employers faced with costly Ministry of Labour compliance
orders, that have not been issued to competitors, are often
concerned that the orders would put them at competitive
In a recent decision, the Ontario Labour Relations Board has
rejected an employer's argument that a
Ministry ergonomist's order should be suspended because
of competitive disadvantage.
The Ministry ergonomist accompanied a Steam Whistle Brewing
driver on a delivery route and observed him unloading product,
including lowering a 50 kg keg down a flight of stairs, walking
backwards and partially supporting the key with his thighs.
The ergonomist issued a number of compliance orders to the
employer that it appears to have believed would hamper its
ability to deliver product efficiently.
Steam Whistle argued that the compliance orders would put it at
competitive disadvantage compared with other craft breweries who
were not subject to similar compliance orders.
The OLRB stated,
"To my mind, the question of competitive disadvantage ought
not to be a factor in assessing prejudice for the purpose of a
suspension request. In almost every situation in which an
Inspector makes an Order under the Act, the recipient of that Order
will be in the position to assert that one of its competitors is
now more advantaged than it, and therefore has the benefit of a
competitive advantage. Accordingly, if competitive
disadvantage were to be a significant factor in a suspension
request application, every Order made by an Inspector would be
subject to suspension as a matter of course. In any event, it
has not been asserted by Steam Whistle that the cost of complying
with the Orders is so significant that it would make a meaningful
difference in its ability to compete with its
The moral of this case is likely that employers should take
proactive steps to avoid issues arising that could lead to costly
Ministry compliance orders. The "competitive
disadvantage" argument, without more, will not succeed.
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