Unions Using OHSA to Attempt to Obtain Work for Members

In some recent cases at the Ontario Labour Relations Board, unions have attempted to use the provisions of the Occupational Health and Safety Act to argue that only the unions’ members can perform certain work.

The latest example is an application brought by the International Brotherhood of Electrical Workers (IBEW) arguing that only its members, licensed electricians, are entitled to insert a certain type of plug into a receptacle.

The IBEW relied on section 182 of the Construction Projects regulation under the OHSA,  which provides that:

“182 (1)  No worker shall connect, maintain or modify electrical equipment or installations unless,

(a) the worker is an electrician certified under the Trades Qualification and Apprenticeship Act; or

(b) the worker is otherwise permitted to connect, maintain or modify electrical equipment or installations under the Trades Qualification and Apprenticeship Act, the Apprenticeship and Certification Act, 1998 or the Technical Standards and Safety Act, 2000.

(2)  A worker who does not meet the requirements of clause (1) (a) or (b) may insert an attachment plug cap on the cord of electrical equipment or an electrical tool into, or remove it from, a convenience receptacle.”

The OLRB upheld an MOL inspector’s decision that the receptacle in question, which was used in solar installations, was a “convenience receptacle” and thus a non-electrician could insert the plug into the receptacle.  No special expertise was required in order to effect the connection; there was even an “audible clicking noise” to alert the worker when the connection had been effected.

One expects that the union in this case made a decision to take the case to the OLRB under the provisions of the OHSA’s Construction Regulations, rather than advance the case by a grievance under the collective agreement.  One also expects that the MOL would prefer that its inspectors not be turned into adjudicators of work-assignment disputes that are presented as safety issues.

Whether or not the practice of advancing work assignment disputes under safety legislation is part of a “trend” is not certain, but construction-industry employers in particular should watch this caselaw with interest.  Stay tuned to occupationalhealthandsafetylaw.com for updates.

IBEW Local 530 v. Gil & Sons Limited: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii17123/2012canlii17123.html


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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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