An Ontario arbitrator has held, in dismissing a union grievance,
that it would be illegal for an employer to delegate authority over
safety to the joint health and safety committee.
The employer had introduced a rule requiring employees to wear a
chin strap attached to safety headgear. It is clear that
employees did not like the chin strap. The union challenged the
rule under the collective agreement, which stated:
"The Company must take all reasonable precautions for the
safety and health of its employees during their hours of
work. All protective equipment prescribed by the Joint Health
and Safety Committee, and first aid kits, must be provided by the
The union argued that that clause prohibited the employer from
requiring the use of any protective equipment that had not been
approved by the committee.
The arbitrator stated
"Having found that
s. 25 of
OSHA empowers, and indeed requires, the employer to consider,
and where reasonably necessary, mandate the use of personal
protective equipment above and beyond that prescribed, can the
employer delegate that responsibility to another body (in this case
the JHSC)? In my mind, it clearly cannot . . . I do not
believe that the employer can avoid its legal obligation, even when
acting in good faith, to take every precaution reasonable in the
circumstances for the protection of a worker. Accordingly,
even if I were to find (as the union argues) that the employer gave
up the right to unilaterally prescribe PPE in the 1997
negotiations, I am of the view that its actions in that regard
would be of no force and effect in the face of a statute which
imposes the obligation set out in
s. 25(2)(h) of
The arbitrator noted that if the union's argument succeeded,
the employer could be prosecuted for a violation of the
Occupational Health and Safety Act over which it had no
Employers with policies or agreements that could be read to
delegate some of the employer's responsibility for safety to
employees or a union, should review those policies or agreements in
light of this decision.
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