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.
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