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 Company.”
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 OSHA.”
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 control.
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.
Gerdau Ameristeel (Whitby Plant) v United Steelworkers, Local 6571, 2012 CanLII 41114 (ON LA)