1. law, govt and politics

from the editors of
Insider
www.OHSInsider.com
MATERIALS HANDLING: How to Protect
Workers Moving or Storing Materials
Volume 7 - Issue 6
JUNE 2011
FEATURES
Materials Handling
1
How to protect workers who handle or store
materials in the workplace.
What the Law Says (p. 5)
Know the Laws of Your Province (p. 6)
Hazardous Substances
1
Complying with WHMIS requirements for
'consumer products.'
Know the Laws of Your Province (p. 17)
REGULARS
Test Your OHS I.Q.
7
Using Workers' Personal Cell Phone
Records to Enforce Driver Distraction Rules
continued inside ON PAGE 2
Traps to Avoid
8
OHS Month in Review
9
Case of the Month
9
Industry Stacking Standards v. Legal
Requirements
Crown Drops C-45 Charges in ON
Crane Case
Hazard Profile
18
Winners & Losers
20
Nanoparticles
Are Death Threats Grounds for Immediate
Termination?
TALK TO US
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professionals do their jobs better and
more easily. So tell us what you need!
For example, are you unsure what the
OHS laws require you to do for a certain
hazard? Need help training supervisors
on handling unsafe work refusals?
Share your pressing safety compliance
problems with us by calling (203) 9876163 or emailing [email protected]
Robin L. Barton
Editor
N
early every workplace handles or stores some kind of materials. Whether
your company has a large warehouse or a small storage room, your
workers need
to
move
those
EXECUTIVE SUMMARY
materials around the
The Law Says: Employers must protect workers from the hazards
posed by the handling and storage of materials.
workplace, either by
Implement a Materials Handling Program that Includes:
hand or using devices
1. Hazard assessments;
such as pallet jacks
2. Use of engineering controls when possible to eliminate hazards;
3. Safe work procedures for handling and storing materials;
and forklifts. While
4. Rules for use of appropriate PPE; and
handling
materials,
5. Training for all workers who handle or store materials.
workers are at risk of
Tools: Ergonomics Risk Factor Checklist; a Checklist for Evaluating Your
Ergonomics Program and forms for investigating injuries to the neck,
getting hurt. And even
shoulders and upper back; hips, knees and feet; and elbows, forearms
and hands.
once the materials
HAZARDOUS SUBSTANCES: Does WHMIS
Apply to ‘Consumer Products’ Like Cleaning
Supplies and Glue?
W
HMIS covers a wide range of hazardous chemicals and substances
(called “controlled products”), including everyday chemical products
found in workplaces, such as cleaning supplies, adhesives and solvents.
Although
not
as
EXECUTIVE SUMMARY
dangerous as other
The
Problem:
Many of the everyday chemical products found in
controlled
products
workplaces are subject to special “consumer product” rules under
used in industrial
WHMIS.
4 Things to Do:
processes,
these
1. Identify consumer products in your workplace;
products still pose
2. Ask suppliers for an MSDS for those products;
3. Apply WHMIS workplace labels to consumer products when needed;
hazards to workers
and
and the environment.
4. Train workers on safe storage, handling, use and disposal of consumer
products.
Accordingly,
such
“consumer products”
are subject to special WHMIS requirements. More precisely, consumer products
are subject to some WHMIS requirements and exempt from others.
continued inside ON PAGE 14
2
SAFETY COMPLIANCE
INSIDER
Board of Advisors
Andrew Cooper, CHSC
University of Alberta
Edmonton, AB
have been stored, workers are still at risk because improperly stacked materials
could fall or collapse on them. So it’s critical to implement a materials handling
program to protect workers from these hazards. We’ll tell you how to develop
such a program for your workplace.
MATERIALS HANDLING TOOLS:
Go to the Insider's online partner website, www.OHSInsider.com, to
download an ergonomics risk factor checklist as well as a checklist for
evaluating your ergonomics program and forms for investigating injuries
to the neck, shoulders and upper back; hips, knees and feet; and elbows,
forearms and hands. You can also access links to materials handling
resources from various jurisdictions.
Cheryl A. Edwards
Heenan Blaikie LLP
Toronto, ON
Norman A. Keith, CRSP
Gowling Lafleur Henderson LLP
Toronto, ON
Ken Krohman
MacKenzie Fujisawa
Vancouver, BC
HOW TO COMPLY
Fred C. Leafloor, CRSP, CHSC
Safety First Intl. Services
Dartmouth, NS
Materials handling is a term that generally refers to three separate operations:
David G. Myrol
McLennan Ross LLP
Edmonton, AB
• Manual handling, such as carrying bags or materials and unpacking
materials by hand;
Yvonne O’Reilly, CRSP
O’Reilly Health & Safety Consulting
Toronto, ON
• Handling by machines, such as forklifts, cranes and rigging; and
• Stacking or storing materials such as drums, kegs, lumber, pallets, etc.
Wayne Pardy, CRSP
Q5 Systems
St. John’s, NL
All three aspects of materials handling can endanger your workers. For
example:
Barbara Semeniuk, BSc, CRSP
Purcell Enterprizes
Edmonton, AB
• Lifting objects manually can cause musculoskeletal injuries (MSIs), such as
back strains and sprains;
• Motorized materials handling equipment can tip over and injure the
operator or hit other workers; and
Your Plain Language Guide to C-45, OHS & Due Diligence
www.OHSInsider.com
EDITOR:
ROBIN L. BARTON
• Materials that are improperly stored or moved can strike or crush workers.
Managing editor:
GLENN S. DEMBY, ESQ.
The OHS regulations of all Canadian jurisdictions require employers to protect
workers from these kinds of hazards. (See the box on page 5 for more on how
the OHS laws address materials handling hazards.) Although the OHS laws don’t
specifically require materials handling programs, implementing such a program
is an effective way to ensure that your company complies with the requirements
spelled out in the regulations.
LAYOUT:
TRACY BRIGHTMAN
PRESIDENT AND CEO:
ROB RANSOM
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5 Key Components of Program
Like all safety programs, materials handling programs should be in writing. The
five key components of an effective materials handling program are:
Hazard assessment. You should first assess all of the hazards associated
with materials handling to ensure that you know what hazards to address in
your program. The assessment should look at the hazards associated with:
Printed in Canada.
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3
Manual handling. If workers have to lift and carry heavy
objects by hand, they risk back and other injuries. In fact,
one of the most common causes of MSIs is improper manual
materials handling practices. So your assessment should
consider whether manual lifting methods can be replaced
with mechanical ones, such as the use of hand trucks, and
whether you should establish weight restrictions on how
much one worker can lift or carry alone.
Alberta’s OHS law has a good assessment standard for
manual handling. It says that before a worker manually lifts,
lowers, pushes, pulls, carries, handles or transports a load
that could injure him, the employer must perform a hazard
assessment that considers:
• The weight, size and shape of the load;
• The number of times the load will be moved; and
• The manner in which the load will be moved.
Mechanical handling. Although the use of equipment to
handle materials can eliminate MSIs, it also exposes workers
to other risks. For example, forklifts, cranes, pallet jacks and
the like can injure the workers operating them as well as
co-workers if they’re not used and maintained properly.
Storage. You should also identify hazards associated with
your company’s storage methods. For example, BC’s OHS
law requires material to be placed, stacked or stored in a
stable and secure manner. So make sure that shelving is
properly rated for the load and that stacked materials and
containers are properly secured. In addition, some materials,
such as bricks, can’t be stacked over two metres high
unless the stack is tapered. And make sure that aisles and
passageways around the storage area are kept clear so that
handing equipment can easily access the materials.
Insider Says: You should also assess any special hazards posed
by the nature of the materials handled in your workplace.
For example, if workers regularly handle boxes of hazardous
substances, consider the dangers workers would be exposed to
if a box of chemicals was dropped while being moved.
Engineering controls. The next phase of a materials
handling program is to eliminate or minimize the hazards
you’ve identified in your assessments. The first preference
is to use engineering controls to eliminate these hazards.
For example, prevent shelves of materials from falling
over by anchoring them to the wall and prevent materials
from falling off of racks by properly securing them. And
set up separate travel lanes in your facility for forklifts and
pedestrians to protect workers on foot from being hit or
run over.
Safe work practices. Engineering controls tend to be
costly and may not always be feasible. If you can’t eliminate
materials handling hazards through engineering controls,
you’ll need to set safe work practices to address these
hazards. For example:
• Require two workers to lift any materials weighing
more than a designated weight;
• Require workers operating forklifts to use seatbelts
and to follow posted speed limits;
• Establish a code to be used by all signallers who
direct the movement of motorized materials handling
equipment;
• Inspect rigging used to move materials before every
use and require more comprehensive inspections
once a week; and
• Bar workers from walking underneath suspended
loads.
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4
FEATURED TOOLS
Here are just a few of the tools recently featured
on www.OHSInsider.com:
1. Tower Crane Weekly & Monthly Inspection Form
2. Model Workplace Domestic Violence Policy
3. Earthquake Preparedness Activities Checklist for
Businesses
4. WHMIS Program Implementation Checklist
5. Model Notice: How to Recognize the Warning
Signs of Fatigue
• Selection, inspection, maintenance and use of
materials handling equipment; and
• Use and maintenance of PPE.
As with any safety training, you must document the
materials handling training provided to workers and take
steps to verify that this training was effective, such as
by quizzing workers or making them demonstrate the
techniques they’ve been taught. For example, have workers
show the proper technique for lifting a 10 kg box. In
addition, retrain workers on a regularly scheduled basis and
whenever there are changes in the types of materials, the
workplace, equipment, operations or other conditions not
adequately addressed in their previous training.
BOTTOM LINE
PPE. You’ll also probably have to ensure that workers
use appropriate PPE to protect themselves from materials
handling hazards. For example, require workers to wear
gloves or other hand and forearm protection when moving
loads with sharp or rough edges. And require them to wear
safety shoes to protect their feet in case they drop a load
of materials.
Training. The OHS laws require training on various aspects
of materials handling. For example, Sec. 14.23(1) of the
federal OHS Regulations requires employers to train workers
who operate motorized materials handling equipment on
the procedures for inspecting and fuelling the equipment as
well as its safe and proper use. And Sec. 211.1 of Alberta’s
OHS Code, 2009 requires employers to train workers who
could be exposed to MSIs on identification of the factors
that could lead to an MSI; the early signs and symptoms of
MSIs and their health effects; and preventive measures.
A materials handling program should generally include
training on:
• Materials handling hazards, including any hazards
posed by the nature of the material, such as hazardous
substances;
Once you’ve developed and implemented a materials
handling program in your workplace, you can’t call it a day.
You must regularly evaluate the program’s effectiveness,
such as every year, and update it when necessary. For
example, you might need to re-visit materials storage
procedures if there’s an incident in which stored materials
fall on a worker. Remember that hazards are constantly
shifting. So materials handling safety requires you to stay
on top of changing conditions, identify flaws in your
program and make the adjustments necessary to correct
them.
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• MSIs, including what they are, early signs and
symptoms and how to avoid them;
• Safe work procedures, including the safe use of any
equipment such as hoists and pallet jacks;
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5
WHAT THE LAW
Every jurisdiction’s OHS laws require employers to take
precautions to protect workers from the hazards posed by
materials handling. But because materials handling covers so
many activities and types of equipment, these requirements
are often scattered throughout the OHS regulations. For
example, although NB, NS, PE and QC have sections in
their OHS regulations devoted to materials handling, they
also have additional requirements related to materials
handling located in other parts of their regulations, such as
in sections on hoists, cranes and mobile equipment.
Regardless of where materials handling requirements are
located in the OHS regulations, all jurisdictions typically
include requirements on:
Manual handling. All OHS regulations include
requirements for the manual handling of materials. These
requirements generally address the need to protect
workers from developing MSIs when handling materials,
such as conducting risk assessments before workers move
loads. In fact, several jurisdictions—AB, BC, MB, NL, QC
and SK—have specific sections devoted to MSI assessment
and prevention.
Mechanical handling. The OHS regulations also have
requirements that apply to the handling of materials using
mechanical devices, such as hoists, cranes and forklifts.
These requirements, which are often contained in sections
on powered mobile equipment, generally address:
SAYS
•
Standards such equipment must meet, including
when they require rollover protection;
•
Safe use and operation of the equipment, including
the use of seatbelts;
•
Maintenance and inspection;
•
Use of signallers; and
•
Worker training.
Storage. The OHS regulations generally have two kinds
of materials storage requirements. There are general
requirements that apply to all types of material. For
example, Manitoba requires employers to ensure that all
workplace materials are stored in a manner that doesn’t
create a risk to the health or safety of a worker or affect
the safe operation of the workplace. The second type of
storage requirements apply to certain types of materials,
such as:
•
Hazardous materials;
•
Bricks;
•
Bulk material;
•
Bagged material;
•
Barrels, drums and kegs;
•
Rechargeable batteries; and
•
Compressed gas containers.
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6
KNOW THE LAWS OF YOUR PROVINCE
Here are the key sections of your jurisdiction’s OHS law that apply to materials handling:
RELEVANT SEC. OF THE OHS LAW
FED
OHS Regs.:
a. Part XIV (Materials Handling)
b. Part XIX (Hazards Prevention Program, which includes ergonomics-related hazards)
OHS Code 2009:
AB
a. Part 12 (General Safety Precautions)
b. Part 14 (Lifting & Handling Loads)
c. Part 19 (Powered Mobile Equipment)
BC
OHS Reg.:
a. Sec. 4.43 (Stacking materials)
b. Sec. 4.44 (Entrapment)
c. Sec. 4.45 (Falling materials)
MB
Workplace Safety and Health Reg.:
a. Part 7 (Storage of Materials, Equipment, Machines & Tools)
b. Part 8 (Musculoskeletal Injuries)
NB
OHS Reg.:
a. Part VIII (Handling and Storage of Materials)
b. Part XV (Materials Handling Equipment and Personnel Carrying Equipment)
NL
NT/NU
NS
ON
d. Part 21 (Rigging)
e. Part 22 (Safeguards)
d. Secs. 4.46-4.53 (Ergonomics (MSI)
Requirements)
e. Part 14 (Cranes and Hoists)
f. Part 15 (Rigging)
g. Part 16 (Mobile Equipment)
c. Part 22 (Powered Mobile Equipment)
d. Part 23 (Cranes & Hoists)
OHS Regs. 2009:
a. Sec. 31 (Material storage)
b. Secs. 50-54 (Musculoskeletal injury prevention)
c. Sec. 56 (Lifting and handling)
d. Part XII (Powered Mobile Equipment)
e. Part XIV (Cranes, Hoists and Other Lifting Equipment)
f. Part XV (Rigging)
General Safety Regs.:
a. Secs. 27-28 (Stacking of Materials)
b. Secs. 200-242 (Mobile Equipment)
c. Secs. 243-244 (Transporting Materials)
d. Sec. 245 (Fork-lift Trucks)
Occupational Safety General Regs.:
a. Part 5 (Handling and Storage of Material)
b. Part 7 (Hoists and Mobile Equipment)
Industrial Establishments Reg.: Secs. 45-66 (Material Handling)
Construction Projects Regs.:
a. Secs. 37-44 (Storing Materials)
b. Secs. 150-156 (Cranes, Hoists and Rigging)
c. Secs. 168-180 (Cables, Slings and Rigging)
PE
OHS Regs.:
a. Part 33 (Powered Mobile Equipment)
b. Part 35 (Hoists)
c. Part 43 (Handling & Storage of Materials)
QC
Reg. on Occupational Health and Safety:
a. Division XX (Special Ergonomic Measures)
b. Division XXIII (Handling & Transporting Material)
c. Division XXIV (Piling of Materials)
SK
OHS Regs.:
a. Sec. 78 (Lifting and handling loads)
b. Sec. 81 (Musculoskeletal injuries)
c. Sec. 129 (Storage of materials)
d. Sec. 130 (Pallets and storage racks)
e. Part XI (Powered Mobile Equipment)
f. Part XIII (Hoists, Cranes and Lifting Devices)
g. Part XIV (Rigging)
YT
OHS Regs.:
a. Part 5 (Cranes, Hoisting and Lifting)
b. Part 6 (Mobile Equipment)
c. Part 8 (Materials and Storage)
For more safety compliance advice, visit us on the web at www.OHSInsider.com
7
test
your
OHSI.Q.
Using Workers’ Personal Cell Phone Records to Enforce Driver Distraction Rules
SITUATION
Railway policy requires train operators to keep their cell phones and personal communication devices off at all times while on duty. A spate of
incidents in clear weather gives railway officials grounds to suspect that operators are ignoring the policy. So they adopt a new policy requiring
workers involved in “serious incidents” to turn over their personal cell phone records to the incident investigator, if requested. The sole purpose
is to enable investigators to determine if the device was on when the incident occurred. Workers may cross out phone numbers and the content
of any text messages. But a refusal to provide cell phone records is treated as an inference that the device was on at the time of the incident. The
union files a grievance claiming that the policy violates workers’ privacy.
QUESTION
What should the arbitrator do?
1. The policy was “demonstrably necessary” to meet a specific
need;
2. It was effective in meeting that need;
A. Strike down the policy because personal cell phone records are
private information.
3. The loss of privacy was proportional to the benefit gained; and
B. Strike down the policy because it forces workers to incriminate
themselves.
Although it’s a federal case, courts and arbitrators in other
jurisdictions are likely to use the same criteria in determining whether
employers can get access to a worker’s personal cell phone records
[Canadian Pacific Railway Co. and Teamsters Canada Rail Conference].
C. Uphold the policy because railway safety outweighs worker
privacy.
D. Uphold the policy because it serves a compelling safety interest and
applies only to information necessary to accomplish that purpose.
ANSWER
D. The arbitrator should find the policy valid because of
the narrow way it’s written and the compelling safety
interest it serves.
EXPLANATIONS
Few would argue that employers have the right to limit workers’
workplace use of cell phones, Blackberries, MP3 players, portable
computers and other potentially distracting personal electronic
communication devices—especially in safety-sensitive industries such
as railroads and trucking. This scenario, which is based on an actual
federal case, poses a novel question but one that’s likely to come up
again: Can employers demand workers’ personal cell phone records to
enforce these restrictions?
The Canadian Railway Office of Arbitration upheld the policy on the
basis of four criteria:
4. There was no less invasive way to achieve the purpose.
WHY WRONG ANSWERS ARE WRONG
A is wrong because the fact that a worker’s personal cell phone
records are private information is the beginning, not the end of the
inquiry. Arbitrators must also weigh the employer’s interests against
the worker’s privacy rights.
B is wrong because requesting cell phone records is no different than
asking a worker if he broke a rule. Such questions are common in
disciplinary investigations and don’t necessarily violate a worker’s right
to a fair and impartial investigation.
C is wrong because the decision isn’t based on just a weighing
of interests. The railway shouldn’t win because safety outweighs
privacy—it wins because its purpose was compelling and its policy
was the least invasive way to accomplish that purpose. The railway
doesn’t care who workers talked to and what they said; all it wants to
know is whether their cell phones were on. Allowing workers to excise
personal information from their cell phone records thus minimizes the
policy’s privacy ramifications.
SHOW YOUR LAWYER
Canadian Pacific Railway Co. v. Teamsters Canada Rail Conference,
Canadian Railway Office of Arbitration & Dispute Resolution, Case No.
3900, June 23, 2010
June 2011 © Bongarde
8
TRAPS TO AVOID
Following Industry Stacking Standards
Instead of Legal Requirements
F
ollowing industry standards can help a company
comply with legal requirements for materials handling
that are broadly written and don’t provide specifics.
For example, it could be reasonable to follow an industry
standard of stacking materials five units high where the
OHS regulations require safe stacking of those materials
but don’t specify how high stacks can be. But just because
a practice is standard in your industry doesn’t necessarily
mean that it complies with the OHS law.
Compliance with Industry Standard Costs AB
Company $100,000
Two workers were assigned to sort a pile of scrap
aluminum. Because the pile was large, there wasn’t enough
room in the area where it had been dumped to sort it. So
the foreman told the workers to sort the scrap in a location
close to stacked bales of scrap wire that were four bales
high and about three metres tall. While the workers were
sorting the aluminum on the ground, a large, heavy bale
fell on one of them, killing him.
The company noted that the OHS law didn’t specify
how high the stacks could be and claimed that stacking
bales four high complied with the industry standard. But
the court explained that although an industry standard
may be a relevant starting point in determining what an
employer must do, it isn’t the same as the legal standard of
care. The “known instability” of the bales and the fact that
the company didn’t have a written stacking policy or make
efforts to keep workers away from the bales undermined its
due diligence defence, concluded the court [R. v. General
Scrap Iron & Metals Ltd.].
1. Compare the standard to the OHS laws in your
jurisdiction. If the OHS regulations establish clear and
specific stacking requirements, those requirements
are the ones you should satisfy. For example, if OHS
regulations set a height limit on stacks or require the
use of supports or anchors for stacks, following an
industry standard that permits the stacking of material
over that height limit and without supports or anchors
won’t help your company avoid liability for a safety
offence. But substituting an industry standard for an
OHS requirement may not only be acceptable but also
advisable if the industry standard is stricter, that is, it
allows for stacking three units high instead of the four
unit height permitted by the OHS law.
2. Ensure that what you believe to be the industry standard
really is the standard for the industry. The employer has
the burden of proving that the practice it followed was
the industry standard, which isn’t always easy to do.
3. Even when the OHS law leaves room for following
industry standards and a certain practice is clearly an
industry standard, the practice must also be reasonable.
For example, the court in the General Scrap case
suggested that stacking scrap metal bales four high
wasn’t a reasonable standard given how unstable those
stacks are.
Insider Says: For more on industry standards and due
diligence, see “Is Following an Industry Standard the Same
Thing as Due Diligence?” May 2005, p. 1.
SOLUTION: Make Sure Standard Is Consistent
with the OHS Law
SHOW YOUR LAWYER
Instead of blindly following industry standards and assuming
that you’re complying with OHS laws, do at least three
things first:
R. v. General Scrap Iron & Metals Ltd., [2003] ABCA 107
(CanLII), April 3, 2003
For more safety compliance advice, visit us on the web at www.OHSInsider.com
9
OHS Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and board rulings
CASE OF THE MONTH
Crown Drops C-45 Charges in Ontario Crane Case
Since Bill C-45 took effect six years ago, it had resulted in only three criminal
negligence cases. Then, in a matter of weeks early last year, criminal charges
were laid in connection with two workplace fatalities, one in Ontario and
one in BC. The Ontario case was just resolved—with the complete dismissal
of the criminal charges against all three defendants. What happened? Here’s
how the Crown prosecutors explained their decision.
THE CASE
What Happened: On April 16, 2009, the City of Sault Ste. Marie’s Public
Works Department was performing sewer work in an excavation at the
city landfill. The city had hired Millennium Crane Rentals to provide an
80-tonne mobile crane and crane operator to assist in placing concrete
structures into the excavation. The crane fell into the excavation while it
was being repositioned. A city worker who was in the excavation at the time
was pinned across the stomach and pelvis by the crane. He was rushed to a
nearby hospital but later died from his injuries.
The Charges: In Feb. 2010, the police charged Millennium Crane Rentals,
David Brian Selvers (the crane owner) and Anthony Vanderloo (the crane
operator) with criminal negligence. In addition, the Ontario Ministry of
Labour laid charges under the OHS Act against Millennium Crane Rentals
and the crane operator, for, among other things, failing to ensure the crane
operator was properly licensed, the crane was maintained in a condition
that didn’t endanger a worker and the crane wasn’t defective and/or
hazardous.
The Dismissal: In explaining why the Crown dropped the criminal charges,
assistant Crown attorney David Kirk said, “There is no reasonable prospect
of conviction based on the evidence we have.” (Millennium and Vanderloo
still face charges under the OHS Act.) In his statement, Kirk explained that
expert evidence would play a pivotal role in establishing the elements of
the offence in the criminal proceedings. “To prove the charge of criminal
negligence causing death, one of the elements the Crown would have to
prove as causation: that the condition of the crane directly contributed in
the [worker’s] death,” he said. The Crown concluded that the engineering
report doesn’t establish with certainty whether the braking capacity of the
crane was able to stop the crane from entering the excavation, which it says
is necessary to prove the criminal charge.
ANALYSIS
It took the Crown nearly a year to file criminal negligence charges. So the
question is why did it only realize now that the evidence doesn’t actually
support such charges? After all, it would appear that it had plenty of time
to get an engineering report on the crane.
Perhaps public and union pressure forced the Crown’s hand and
pushed it into filing criminal negligence charges before it was really sure
those charges were appropriate. One of the trends we’ve seen in the few
criminal negligence cases for workplace safety incidents is that public
pressure—especially from unions—plays a significant role in whether
charges are brought.
For example, after the C-45 charges were filed in this case, Sid Ryan,
president of the Ontario Federation of Labour, said the case may represent
a “huge step forward” for worker safety in Ontario because employers
will now have to “sit up and take notice” of potential criminal liability
when workers are killed on the job. But Ryan now says he’s “extremely
disappointed” by the latest developments, believing the withdrawal “sends
a terrible signal to employers that it’s almost impossible in Ontario to be
[criminally] convicted” for a workplace death.
So what, if anything, does the Crown’s decision to now withdraw those
charges mean for future C-45 cases? Perhaps prosecutors will be more
deliberate when it comes to pursuing criminal negligence charges in
workplace safety incidents and less willing to bow to outside pressure. Or
it may make no difference at all. We’ll have to wait and see.
Insider Says: Go to our C-45 Compliance Center, where you’ll find
lots of information on criminal negligence, including the elements
of a criminal negligence charge and how to protect your company
and individuals, such as officers and directors, supervisors, JHSC
members and even safety coordinators, from facing such a charge.
LAWS & ANNOUNCEMENTS
March 24: Nuclear Safety Charges Dismissed
Federal prosecutors have “stayed”—that is, essentially dismissed—charges against Mistras Canada
Inc. under the Nuclear Safety and Control Act for improper handling, storage and transport of a
nuclear substance. The charges were based on the exposure of two truck drivers to a radiation
level above a limit set for the public by a device used for pipeline imaging. But there was no
indication that anyone got sick as a result.
April 3: Japan Reactor Disaster Raises
Concerns about Uranium Mine
The tiny Nunavut community of
Baker Lake is concerned about a
proposed $1.5-billion uranium mine
in the wake of the nuclear disaster
unfolding in Japan. Nunavut Tunngavik
Incorporated, Nunavut’s land claim
organization, is also reviewing its
conditional support for uranium
mining.
March 26: Truckers Want Changes to Hours of Service Regulations
The Saskatchewan Heavy Construction Association is lobbying for a change to the federal Hours
of Service Regulation to allow short haul drivers to drive on a slightly longer cycle, arguing that
the change would result in fewer delays transporting materials from one site to another during
the short construction season.
NUNAVUT
FEDERAL
LAWS & ANNOUNCEMENTS
June 2011 © Bongarde
10
ALBERTA
LAWS & ANNOUNCEMENTS
CASES
March 26: County Executive Violated Workplace Violence
Policy
According to a recent report, the Licking County economic
development manager violated the county’s workplace threat and
violence policy during a phone conversation with his boss, who
was in Florida at the time. The report states that he used profanity,
said he was going to talk to his lawyer and said, “You want to go
one-on-one when you get back?” The boss considered the words a
threat, but 11 co-workers were split on the issue. The manager has
been on leave pending discipline.
Workers’ Comp Covers Worker’s Lung Disease Even Though Victim Smoked
The Appeals Commission ruled that workers’ comp covered chronic obstructive
pulmonary disease (COPD) suffered by a worker who’d smoked for 26 years.
Smoking played a significant role in his development of COPD. But his exposure to
toxic materials in his work in mines, plants, refineries and pulp mills also contributed
to his disease. The Commission concluded that when a respiratory disease is partly
caused by occupational factors and partly by non-occupational factors, the overall
disability is presumed to be work-related [Decision No. 2011-275, [2011] CanLII (AB
W.C.A.C.), April 1, 2011].
March 24: New Rules for Amusement Ride Safety
The government implemented new rules to enhance amusement
ride safety as a result of the investigation into an incident at last
year’s Calgary Stampede. Highlights:
• Owners must keep on-site inspection reports from all
jurisdictions in which an amusement ride has operated for
five years
• Owners must complete an owner and Alberta Safety Codes
Officer checklist for each ride
• Once a deficiency is detected, owners must confirm that
the ride manufacturer has evaluated the information and
reported findings to the owner and Safety Codes Officer
• If metal fatigue is detected on a ride, independent nondestructive testing must be conducted on the entire ride and
repairs made to any defects
• Older rides would be considered for additional comprehensive
non-destructive testing.
Supplier Can’t Be Prosecuted for Violating Employer’s OHS Duties
A rental company supplied a mechanical ride to another company. An employee
of that company was killed while operating the ride. The Crown charged the rental
company, as a supplier, with violating Sec. 12(1)(b) of the OHS Regulation by failing
to ensure the ride would safely perform its intended function. The court dismissed
the charge. The OHS law imposes duties on both employers and suppliers. But the
Crown charged the rental company, which was a supplier, with violating a duty the
OHS law specifically imposes on employers, which it wasn’t [R. v. 402485 Alberta
Ltd. (c.o.b. Radar’s Rentals), [2011] A.J. No. 300, March 14, 2011].
Shanghai Company Must Appear in Alberta on OHS Charges
A storage tank collapsed, killing two workers and seriously injuring two others.
The Crown charged three companies, including one based in Shanghai, with
OHS violations. After missing two court appearances, a lawyer for this company
appeared in court, arguing that the company hadn’t been properly informed of the
charges and so didn’t have to participate in the trial. The trial court agreed but the
appeals court overturned that decision. Once the lawyer appeared in court and at
a pre-trial conference on the company’s behalf, the company was properly before
the court and had to appear for trial. Otherwise, a company actively involved in
business in Canada but without a physical presence here could escape liability for
wrongdoing, explained the court [Alberta v. Sinopec Shanghai Engineering Co.,
[2011] A.J. No. 291, March 16, 2011].
LAWS & ANNOUNCEMENTS
LAWS &
ANNOUNCEMENTS
PE
NB
April 8: Workers’ Comp Highlights from 2010
WorkSafeNB released quick facts on its activities in 2010. Safety highlights:
• OHS inspections: 8,765
• Orders for OHS violations: 7,313
• Serious incident investigations: 243
• Work-related fatalities: 9.
April 11: Guide on Accommodations Released
WorkSafeNB released a guide on workplace accommodations that spells out the rights, duties and best
practices under the province’s Workers’ Compensation Act, Employment Standards Act and Human
Rights Act.
June: Distracted Driving Ban to Take Effect
A law that prohibits the use or handling of hand-held cell phones, texting devices and portable entertainment
devices while driving was set to take effect in June on a date to be announced. The new law also prohibits
the manual programming or adjusting of any GPS system while driving.
April 10: Safety Ad Campaign
Begins
To raise awareness about
injury prevention and safety
on the job, two of the WCB’s
“Take care of it before it’s
an injury” commercials are
being broadcast on local TV
stations. The ads, Tape and
Guard, tell the stories of the
tragic results that can occur if
proper attention isn’t given to
workplace safety. Click here to
watch the ads.
NL
LAWS & ANNOUNCEMENTS
CASES
July 1: Ban on Workplace Smoking Rooms to Take Effect
The province has banned designated smoking rooms in workplaces and smoking in
cars when children under the age of 16 are present. The government had already
banned smoking in bars, bingo halls, restaurants and other indoor public buildings.
These changes take effect on July 1.
Firing of Driller for Positive Drug Test Upheld on Appeal
After being taken by helicopter to an offshore site, a driller and
other workers were questioned about a marijuana cigarette that
had been found back in the heliport’s reception room. Everyone
on the flight provided a urine sample. The driller’s test came back
positive for marijuana because he said that he’d had “a puff”
of a joint at a neighbour’s party. Even though a second sample
came back negative, the company fired him. The driller sued for
disability discrimination but the NL Board of Inquiry dismissed the
complaint, ruling that he wasn’t disabled because he wasn’t an
addict and there was no evidence that the company perceived or
treated him as if he was an addict. And a court upheld the Board’s
decision on appeal [Leonard v. Human Rights Commission, [2011]
NLTD 48 (CanLII), March 30, 2011].
April 8: Ferry Company Implements Safety Measures after Incident
A ferry rolled “vigorously and quickly” for about 25 seconds, injuring four crew
members and two passengers. The ferry service said the following factors contributed
to the incident: one of the starboard stabilizers retracted due to low oil in a tank;
the vessel was being steered at a higher speed; there were high winds and heavy
seas; and darkness gave the crew “limited situational awareness.” The company
president said that it’s put measures in place to prevent a recurrence, including
reinforcing the steering characteristics on the vessel and ordering stabilizers to be
used whenever possible.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
11
LAWS & ANNOUNCEMENTS
BRITISH COLUMBIA
Ferry Captain’s Termination Wasn’t an Illegal Reprisal
The captain fired after the sinking of the Queen of the North ferry
claimed that the ferry service terminated him for raising OHS issues
during the inquiry into the incident. The WCAT disagreed and so
did the appeals court. The captain had raised 58 safety concerns,
none of which related to the sinking that was the focus of the
inquiry. The company didn’t dismiss these concerns but tried to get
the captain to focus on the matter at hand—the ferry sinking. But he
evaded responsibility for the incident and didn’t act like a member
of the management team should during an inquiry—and that’s why
he was fired [Henthorne v. BC Ferry Services Inc., [2011] BCSC 409
(CanLII), April 1, 2011].
March 31: Public Hearings to Be Held on Proposed OHS Regulation
Amendments
WorkSafeBC will hold public hearings in May and June 2011 on proposed amendments
to the OHS regulations. Click here for schedule and registration information.
March 21: Review of Violence Tracking System in Jails Underway
The province is reviewing a system that tracks violence in BC jails in response to
concerns about underreporting of assaults and other violent incidents. The review was
launched after the BC Government Employees’ Union raised flags over the reliability
of ICON, or the Integrated Corrections Operations Network, which was implemented
in 2008.
April 12: Teachers Weren’t Properly Trained to Safely Deal with Autistic Child
WorkSafeBC agrees with staff who refused to work at an elementary school over safety
concerns about handling a six-year-old student with autism. Since Sept. 2010, the school
has reported 16 physical and/or threatening incidents between students and workers,
but it’s unclear how many of them involved this boy. The school district has a Crisis
Response Plan in the Student Safety Plan, which includes a specific Crisis Prevention
Intervention Protocol. But teachers weren’t specifically trained in this protocol and the
related emergency response.
May 1: Minimum Wage to Increase
The general minimum wage will increase from $8 per hour to $8.75 on May 1. Two
additional 75¢ increases will follow in Nov. 2010 and May 1, 2012. In addition, the First
Job Wage, or “training wage,” will be eliminated and all minimum wages will be the same.
Exception: A new liquor server minimum wage rate of $8.50 per hour will take effect on
May 1 and rise to $9 on Nov. 1, 2012 for workers whose primary duties are as servers of
food, drink or both and who, as a regular part of their employment, serve liquor directly
to customers, guests, members or patrons in premises with a liquor licence.
CASES
Asbestos Company Owner Avoids Contempt Charge on a Technicality
A man who ran an asbestos abatement and demolition business didn’t send samples to
labs for testing for asbestos and instead forged testing reports on stolen lab letterhead.
He also employed workers as young as 14, didn’t provide them with PPE or training
and instructed them to run away if a safety inspector showed up at the site. The man
then defied an injunction, or court order, barring him from continuing this kind of
work. So the government asked the court to hold him in contempt and throw him in
jail. The court said the government made a “compelling case for incarceration.” But
because the injunction’s wording was ambiguous, it couldn’t hold the man in contempt
[WCB v. Moore, [2011] BCSC 459 (CanLII), April 11, 2011].
Poultry Plant Discriminated Against Worker with Shoulder Injury
A worker at a poultry plant injured his shoulder in a car accident. He gave his employer
a doctor’s note that said he could work three days a week without any heavy lifting.
The employer let him work three days a week for months. Then it temporarily laid him
off and later fired him. The worker claimed disability discrimination and the Human
Rights Tribunal agreed. There was no evidence as to why the employer suddenly
couldn’t let the worker work part-time as he’d been doing for 10 months or that it
had accommodated the worker to the point of undue hardship. The Tribunal ordered
the employer to pay the worker lost wages and $7,500 in damages [Sarain v. Wingtat
Game Bird Packers Inc., [2011] B.C.H.R.T.D. No. 84, April 6, 2011].
Company Could Threaten to Fire Worker for Secretly Taping
Meetings
A worker with heart disease filed a disability discrimination
complaint against his employer. He also claimed that it had retaliated
against him for filing the complaint by threatening to fire him. The
BC Human Rights Tribunal found that the employer had taken
all reasonable steps to accommodate the worker and that there
was no evidence that the termination threats had anything to do
with the discrimination complaint. Rather, the company justifiably
threatened to fire the worker when it learned of his secret taping of
several return-to-work meetings—with his union’s knowledge and
consent. The worker refused to turn over the tapes and ultimately
resigned, on the union’s advice, to preserve his pension [Boehler v.
Canfor Pulp LP, [2011] BCHRT 73 (CanLII), March 23, 2011].
Not Letting Worker Return to Work after Back Injury Was
Discrimination
A worker injured his back on the job and was out of work for six
days. When he was ready to return, the company wouldn’t let
him. When the worker told his supervisor that he might have mild
scoliosis, the supervisor told him that because of the likelihood he
would re-injure his back, “they were going to have to let him go.” So
the worker claimed discrimination based on a perceived disability,
that is, a weak back. The Human Rights Tribunal didn’t buy the
company’s excuses for letting the worker go and noted that there
was no evidence that letting him return to work would have been
an undue hardship. It ordered the company to pay him $8,000 in
damages, $1,600 in lost wages and $475 in expenses [Cartwright v.
Rona, [2011] BCHRT 65 (CanLII), March 17, 2011].
Elderly Driver Sentenced for Running over Flagger
A flagger for a road crew was standing at the far end of a curved
road communicating via radio with another flagger when an elderly
driver ran him over, killing him. The court gave the 88-year-old
driver, who’s legally blind and whose licence hadn’t been renewed
since 2001 due to his poor eyesight, a suspended sentence and
ordered him to perform 15 hours of community service and serve
two years’ probation and barred him from driving for 10 years.
The sentence angered members of the province’s traffic control
community, who said it was too lenient [Melle Pool, Canadian
OH&S News, March 21, 2011].
NS
LAWS & ANNOUNCEMENTS
CASES
April 14: Increased Fines for OHS Violations Proposed
The government proposed legislation that would increase fines for OHS
violations for the first time since 1996. The maximum fine would remain
$250,000 for a first offence but rise to $500,000 for additional offences within
five years. In addition, the maximum fine for any offence involving a death
would be $500,000.
April 18: Serious Workplace Injuries at Lowest Level in 15 Years
The number of serious injuries in Nova Scotia workplaces is at its lowest level
in 15 years, said the WCB in its 2010 annual report. Last year, 6,921 people
suffered serious injury on the job—the first time that number has been below
7,000 since 1995. There were also improvements in return to work, with 95% of
workers returning to work making 100% of their pre-injury earnings.
Letter Carrier’s Mental Stress Problems Not Covered by
Workers’ Comp
A letter carrier filed two workers’ comp claims for mental stress. The
first was based on job-related pressures; the second on an incident
in which a co-worker allegedly grabbed his arm. Both were denied.
On appeal, the Tribunal upheld the denials. There wasn’t sufficient
evidence that the carrier suffered from a mental condition resulting
from unusual or excessive work-related stressors over time or from a
traumatic event. In fact, the worker had a history of psychiatric issues
that predated any of the events that he claimed caused his mental
condition [WCAT #2010-226-AD & 2010-473-AD, [2011] CanLII 16159
(NS W.C.A.T.), March 24, 2011].
June 2011 © Bongarde
12
ONTARIO
LAWS & ANNOUNCEMENTS
CASES cont'd
March 31: Bill 160 Sent to Committee
The second reading of Bill 160, Occupational Health and Safety Statute
Law Amendment Act, 2011, ended when the bill was sent to the Standing
Committee on Social Policy. On April 7, the Interim Prevention Council
forwarded a letter to the Minister of Labour with its recommendations for
improvements to Bill 160. The Committee held public hearings on April
11, 12 and 18. In addition, a clause-by-clause consideration of the bill was
scheduled for May 3. (Go to the Ontario OHS Reform Compliance Center for
regular updates.).
College Couldn’t Retaliate Against Guard Because It Wasn’t His
Employer
A security guard assigned to patrol a college parking lot contacted the MOL
about some safety concerns, which resulted in an inspector’s order. He
was later reassigned and eventually let go. He filed a reprisal complaint
against the security company and college. The Labour Relations Board
dismissed the complaint against the college because it wasn’t his employer
and there was no evidence that it had retaliated against him for calling the
MOL [Dunphy v. Primary Response Inc., [2011] CanLII 15297 (ON L.R.B.),
March 21, 2011].
April 4: All Confined Space Requirements Consolidated
Amendments to consolidate all confined space requirements into one
regulation were approved. As a result, as of July 1, 2011, O. Reg. 632/05
(Confined Spaces) will apply to industrial establishments, construction
projects, healthcare and residential facilities, and mines and mining plants.
The consolidation is an administrative measure that doesn’t affect the
substance of the confined spaces requirements.
March 31: Changes Proposed to Mining Regulation
The MOL has proposed amendments to Regulation 854, which applies
to mines and mining plants. In addition to adding occupational noise
requirements, the proposed amendments update:
• Training requirements to reflect changes in training programs approved
by the Ministry of Training, Universities and Colleges
• Diesel exhaust exposure limits
• Provisions related to mine hoisting plants
• Requirements pertaining to work on wheel and tire assemblies
• Mine rescue provisions.
April 11: Results of PPE Blitz in Mining Operations
The MOL released the results of its PPE blitz in the mining sector in Nov. 2010.
Inspectors conducted 77 field visits and issued 59 orders, including one stop
work order at a gravel pit. Some of the contraventions involved:
• Inadequate reflective striping on clothing
• Workers observed without hard hats, protective toe work boots and
required hearing and eye protection
• Absence of a rescue plan for workers suspended by a fall arrest system
• Improper respirator care and improper testing to ensure proper
respirator fit
• Malfunctioning retractable lanyards.
CASES
Labour Board Says OHS Act Doesn’t Protect Workers from Harassment
A security guard claimed that his supervisor had harassed him on numerous
occasions. But the company said the claims didn’t meet the legal standard
for harassment. It reassigned and then fired him. So he filed a reprisal
complaint under the OHS Act. The Labour Relations Board dismissed his
complaint, ruling that reprisal only applies when a worker is exercising a
right under the OHS laws. And at the time of the events in question, the OHS
Act didn’t provide protection for workplace harassment (it does now). So the
worker had no grounds for a reprisal complaint [Barton v. Commissionaires
(Great Lakes), [2011] CanLII 18985 (ON L.R.B.), April 8, 2011].
11 Months’ Unpaid Suspension Enough for Violent Threat & Chest Bump
A worker inadvertently hit a co-worker in the head as he was flipping a sheet.
The workers got into a screaming match, during which the co-worker chestbumped the worker and challenged him to settle the matter in the parking
lot. The company fired the co-worker. But an arbitrator ruled that an 11
months’ unpaid suspension was enough punishment. The co-worker had
been trained on the company’s violence policy, which his conduct violated.
But the “victim’s” conduct incited and exacerbated the incident. In addition,
the co-worker had raised concerns about the worker’s behaviour and “odd
demeanour” to a supervisor, who did nothing even though he knew there
was a negative history between the workers [Georgia Pacific Canada Inc. v.
Communications, Energy and Paperworkers Union of Canada, Local 192,
[2011] CanLII 18182 (ON L.A.), March 28, 2011].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Workplace Incident Leads to Revocation of Guard’s Gun Licence
Co-workers of an armed guard faxed the Ottawa police after the guard
had a “mental breakdown” at work and had to be disarmed. They said
that they didn’t want to work with him anymore and thought his gun
licence should be revoked. After an investigation, his Authorization to
Carry a Firearm wasn’t renewed. At a hearing about the renewal, the
guard mentioned that he had six firearms in his possession, which the
police seized under a search warrant. He was also suspended at work
based on another incident and other problems on the job. After the
hearing and in the interest of public safety, the judge revoked the guard’s
licence, forfeited his firearms and imposed a five-year gun possession ban.
And the appeals court upheld this decision as reasonable [R. v. Davidson,
[2011] O.J. No. 1199, March 21, 2011].
Construction Company Fined $110,000 for Crane Rigging Incident
Workers at a construction project were preparing to use a crane to hoist
two structures made of rebar that were sitting one on top of the other.
They attached the bottom rebar structure to the crane but didn’t secure
the top structure. As the crane lifted the structures, the load shifted and
the unsecured structure fell on a worker, seriously injuring him. The
construction company was found guilty of failing to ensure that the crane’s
rigging was arranged to prevent the top structure from slipping or falling
and to provide information, instruction and supervision to a worker on
preventing a hoisted object from slipping or falling and was fined $110,000
[AGF Raymond Rebar Inc., Govt. News Release, March 30, 2011].
Clamp Ejected from Die Press Causes Worker to Have Heart Attack
A worker was setting up a new die set for press but the die didn’t have
lower clamping feet to secure it to the press bed. So he used a U-shaped
clamp to secure it. When the press cycled during testing, the clamp was
ejected from the press and struck the worker in the chest, breaking bones
and causing him to have a heart attack. An MOL investigation found that it
was unusual for the company to use a die set without clamping feet and it
had no protocols in place for dealing with this type of die set. The company
pleaded guilty to failing to develop and implement safe procedures for
setting up a die set in a non-standard condition and was fined $75,000
[Woodstock Stampings Inc., Govt. News Release, April 11, 2011].
Partial Burial of Worker in Excavation Costs Company $52,000
Workers building sewers had excavated part of the road and were
working inside the excavation in the rain. A piece of clay fell away from
the excavation wall and partly buried one of the workers, who suffered
broken bones and dislocated joints. The company pleaded guilty to failing
to ensure that the excavation’s wall was supported by an adequate support
system. The court fined it $52,000 [Omega Contractors Inc., Govt. News
Release, April 11, 2011].
Gas Technician Fined $5,000 for Installing Boiler without Proper
Certification
An inspector for the Technical Standards and Safety Authority’s Fuels
Safety Program found that a gas technician had installed a gas boiler at a
home when he didn’t have the appropriate gas technician certification to
do so. He pleaded guilty to violating the Technical Standards and Safety
Act, 2000. The court fined him $5,000. This conviction was his second, the
first being for providing false information to an inspector [Gordon Carl
Smith, April 13, 2011].
13
NT
LAWS & ANNOUCEMENTS
CASES
April 7: Health Department Warns of MRSA Outbreak
The NWT Department of Health is warning the public that
methicillin resistant Staphylococcus aureus (MRSA), a strain of
bacteria that’s resistant to antibiotics, is spreading across the
North. MRSA is transmitted easily from person-to-person or
picked up from contaminated surfaces in crowded areas. The
first symptom is often a skin infection that looks like a spider bite.
Prevention—that is, good hygiene and regular hand-washing—is
the best way to fight super bugs.
Engineering Company Fined $34,500 for Worker’s Leg Amputation
At a utility’s dam, a worker’s lower right leg was amputated after a 40-tonne Bailey
bridge fell and crushed it. An engineering company pleaded guilty to one violation
of the Safety Act and was fined $34,500. The Crown dropped the charges against
the company’s president. Earlier this year, another company involved in the incident
also pleaded guilty to one safety violation and was fined $63,250. And the utility
settled its charges by agreeing to invest $100,000 in a safety training program
that will be available to the territory’s entire construction industry [Mandeville
Engineering, Northern News Service, March 23, 2011].
LAWS &
ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS
Two Companies Fined for Safety
Offences at Construction Sites
Two companies were fined for safety
violations at construction sites. Momentum
Builders Inc. was charged after an
Occupational Health Officer saw a worker
on a roof without fall protection. It was
fined $840 for a fall protection violation.
Nick DiRuscio was fined $1,920 after a
routine inspection led to charges of failing
to provide and require workers to use
protective headwear and footwear; use
a fall protection system where a worker
may fall three metres or more; and ensure
workers were sufficiently and competently
supervised at work [Govt. News Release,
March 31, 2011].
April 11: WCB Launched Roofing Safety
Campaign
The WCB and SafeWork Manitoba launched the
latest SAFE Work campaign—Tie One On—just in
time for summer roofing work. The campaign
reminds employers and workers to remember
these guidelines for work at heights:
• Workers require fall protection when
working at heights of three metres or
more or lower than three meters if near a
dangerous area
• Workers must be trained and follow safe
work procedures
• Surface openings must be securely covered
and the covers labelled
• Body harnesses must fit properly and be in
good condition.
MANITOBA
SASKATCHEWAN
April 13: Safety Statistics for
2010 Released
The WCB released its 2010
workplace
fatality
statistics.
Although Saskatchewan had its
eighth straight year of lower time
loss injury rates, fatalities increased
from 34 in 2009 to 45. However,
16 of the 45 fatalities were the
result of occupational diseases
developed from exposures that
took place in the workplace years
and even decades ago. In addition,
there were no fatalities involving
young workers under age 25.
CASES
YT
LAWS & ANNOUNCEMENTS
CASES
April 1: Ban on Cell Phone Use While Driving Took Effect
As of April 1, Yukon drivers must stay off their cell phones while driving or face a $250 fine. The ban
bars drivers from talking or texting with their handheld cell phones or other messaging devices while
they’re operating a motor vehicle.
March 23: Training Course for Mine Supervisors Announced
The Yukon Mine Training Association, WCHSB and CCOHS have developed a generic online certification
e-course for supervisors in the mining and resource-related industries. Core Competencies for First
Line Supervisors – Yukon Mining is part of the process towards obtaining a Permanent First Line
Supervisors Certificate as required by the OHS Act.
July 1: 10 Cancers Designated as Occupational Illnesses for Firefighters
Effective July 1, leukemia, non-Hodgkin's lymphoma, bladder, brain, colorectal, esophageal, kidney,
lung, ureter and testicular cancers will be presumed to be occupational illnesses for full-time Yukon
firefighters. For all firefighters—whether full-time, part-time, volunteer and woodland—a heart attack
suffered up to 24 hours after an emergency call will also be considered a work-related incident.
Yukon Government Wants New Trial in
Blasting Case
The Yukon government wants a new trial almost
a year after being found guilty of permitting
a dynamite blast that sent rocks crashing into
homes in a trailer park. It was fined $30,000. The
government says the territorial court’s decision
sets a dangerous precedent for property owners
who hire contractors, arguing that it means owners
have to constantly monitor the contractors they
hire and leaves contractors with the impression
that they’re not responsible for site safety. The
contractor and site supervisor were also found
guilty of OHS violations for the incident [Daily
Construction News, April 1, 2011].
QUÉBEC
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS cont'd
April 4: Study Says Asbestos Levels in Air at Construction Sites Is High
A new study from Québec’s Public Health Department examined 3,000 air
samples taken from worksites in the province at elevated risk for asbestos
exposure and found that 43% of them had concentrations of asbestos
fibres that met or exceeded the OHS limit. Québec’s occupational asbestos
exposure limit allows for 10 times more airborne fibres than other Canadian
provinces—and 100 times more than some European countries.
April 17: New Work-Family Balance Certification Available
The Québec government launched a corporate certification program on
work-family balance for all businesses regardless of size. Companies can
use the certification symbol of the Bureau de Normalisation du Québec
(“BNQ”) to promote their certification. To get one of four levels of
certification, employers must establish a work-family balance committee,
provide training and prepare documents spelling out the measures of workfamily balance and commitment of management. The BNQ’s information
pamphlet contains several examples of measures that companies can take,
such as offering child care in the workplace, granting additional leave for
family reasons and using a compressed work week. See, www.bnq.qc.ca.
March 28: CSST Released 2010 Financial Report
The CSST announced the financial results for 2010. Highlights:
• Year ended with a $892 million surplus
• Funds generated $1.2 billion in revenue
• Benefit payments to injured workers declined by 0.5%.
June 2011 © Bongarde
14
HAZARDOUS SUBSTANCEs continued FROM PAGE 1
Here’s what you need to know to identify which
substances in your workplace are consumer products and
comply with the WHMIS requirements that apply to them.
There’s also a chart showing what the WHMIS laws in each
part of Canada say about consumer products.
WHMIS RESOURCES:
Go to the Insider's online partner website, www.OHSInsider.com,
for links to various resources on WHMIS requirements, including
those that apply to consumer products.
WHAT THE LAW REQUIRES
The basic requirements for controlled products are spelled
out in a federal statute—the Hazardous Products Act
(HPA)—and the related Controlled Products Regulation
(CPR). Each jurisdiction’s OHS law includes WHMIS
requirements, which apply to two broad groups: suppliers
and employers. Here’s how the requirements for these
groups apply to consumer products:
Step #1: Determine if Substance Is a Consumer
Product
You first need to determine if a product or substance is a
consumer product. The jurisdictions take two approaches
to excluding consumer products from certain WHMIS
requirements:
Narrow approach. Federal and Manitoba OHS law take
a narrow approach, excluding consumer products from the
WHMIS requirements for controlled products only if the
product, material or substance is:
• Included in Part II of Schedule I to the HPA, a list of
“restricted products” that covers chemical products
and containers as defined in the Consumer Chemicals
and Containers Regulations among other things; and
• Packaged as a consumer product (Manitoba also
requires it to be in a quantity normally used by a
member of the general public).
Broad approach. In the rest of Canada, any controlled
product that’s packaged as a consumer product and in
quantities normally used by the general public is generally
exempt from WHMIS supplier label and MSDS requirements.
An item is generally considered to be “packaged as a
consumer product” if it’s:
Suppliers. In general, suppliers must provide supplier
labels and MSDSs for controlled products. Exception:
Controlled products that are packaged as consumer products
and in quantities used by the general public are exempt
from WHMIS supplier label and MSDS requirements.
Employers. If a consumer product is excluded from the
supplier label and MSDS requirements, then the employer
requirements that apply to supplier labels and MSDSs also
don’t apply. For example, an employer doesn’t have to
ensure that an MSDS is available to workers for a consumer
product if the supplier doesn’t have to provide one. But
the other employer requirements for controlled products,
such as “workplace” labels and worker training, do apply to
consumer products.
HOW TO COMPLY
Take these four steps to comply with WHMIS requirements
for consumer products:
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• In a container of a size and type usually sold to the
general public; and
• Available for sale to the general public through retail
outlets.
Example: A solvent considered a controlled product under
WHMIS that’s packaged in a 250-millilitre container and
sold in a hardware store is a consumer product and thus
is exempt from supplier label and MSDS requirements. The
same solvent packaged in a 454-litre drum and sold at an
industrial supply outlet isn’t a consumer product and does
require a supplier label and MSDS.
Bottom line: If an item is a controlled product that’s
packaged for sale to the general public and sold in stores to
the general public, it’s a consumer product under WHMIS.
Step #2: Request MSDS from Supplier
Yes, consumer products are generally exempt from supplier
label and MSDS requirements. So why are we telling you to
ask for an MSDS when the supplier doesn’t have to provide
one? Answer: Because many suppliers have MSDSs for such
products anyway—particularly if they sell the product for
use by both the general public and in workplaces. And if
an MSDS is available for a consumer product, you want to
get it because it has valuable information for protecting
workers using that product.
Take the example above. Suppose the supplier of the
solvent sells it in both quantities and in hardware stores as
well as industrial supply outlets. It would need an MSDS for
the solvent sold for use in workplaces. So even if you buy
the solvent from the hardware store, ask the supplier for
the MSDS or go to the supplier’s website where you may be
able to download it.
Step #3: Apply Workplace Label if Required
Although supplier label requirements don’t apply to
consumer products, employer label requirements, such
as the obligation to affix a workplace label, do. There are
two circumstances in which an employer might need a
workplace label for a consumer product:
Consumer product is transferred to a smaller
container. One of the most common situations in which
a workplace label is required is when a controlled product
is transferred, or “decanted,” from the supplier’s container
into another, often smaller container. In that case, the
employer must put a workplace label on the second
container. However, a workplace label isn’t required if all of
the decanted product is needed for immediate use or if:
• The decanted product is under the control of and is
used exclusively by the worker who filled the smaller
container;
• The decanted product is used only during the shift in
which it was decanted; and
• The contents of the smaller container are clearly
identified.
Consumer product’s label is damaged. Consumer
products may not have WHMIS supplier labels but they’ll
likely have other labels from suppliers, such as those
required by the federal Consumer Chemicals and Containers
Regulations. Such labels provide information on the hazards
the product poses. Employers must replace the label on a
consumer product with either a new supplier label, if one is
available, or a workplace label if the original label becomes
illegible, gets damaged, is removed or falls off.
The workplace label for a consumer product must:
• Clearly identify the product; and
• Provide essential information for the product’s
safe use and
handling.
Insider Says: For more information
on workplace label requirements,
see Insider, March 2010, page 1.
Step #4: Train Workers on Safe Use of Consumer
Product
Even though consumer products are exempt from some
WHMIS requirements, they can still harm workers using
or working near them. Just think about the hazards posed
by a simple bottle of bleach bought from the grocery store
and you get the idea. So it’s essential that you train workers
on consumer products, including:
FF The labelling provided with the product, such as what
consumer chemical labels look like;
FF How to access and read the MSDS for the product, if
one is available;
June 2011 © Bongarde
16
FF Hazards posed by the product; and
FF Ask the supplier to send you an MSDS for the
product;
FF Procedures for safely storing, handling, using and
disposing of the product.
FF Train workers how to safely use, store, handle, use
and dispose of the product.
BOTTOM LINE
Consumer products may be available to the general public.
But they can still pose a danger to the environment or
workers. So do the following to ensure that not only your
company complies with the law but also workers are
adequately protected from the hazards posed by such
products:
‘DO DILIGENCE’ BLOG
Wonder what the editors have been talking about
online? Here are some of the topics recently discussed
in our blog:
FF Determine if a product is a “consumer product”
under WHMIS by checking whether it’s a controlled
product that’s packaged for and sold to the general
public.
If the product is a consumer product:
FF Make sure it has a proper workplace label if one
is needed;
1. Asleep on the Job—It’s Not Just Air Traffic
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2. Is Welding More Hazardous for Female Workers?
3. A Good Time to Consider the Importance of
Protecting New & Young Workers
4. Workers at Japan’s Nuclear Reactors Are Taking
Huge Health & Safety Risks
5. Is Mandatory Retirement a Valid Way to Promote
Safety?
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17
KNOW THE LAWS OF YOUR PROVINCE
CONSUMER PRODUCT REQUIREMENTS
Here’s what the WHMIS laws in each jurisdiction say about consumer products:
JURISDICTION
REQUIREMENTS
FED
Part II (controlled products) doesn’t apply to the sale or import of any product, material or substance included in
Part II of Schedule I and packaged as a consumer product [Sec. 12(f)].
AB
The following sections don’t apply if a controlled product is a product, material or substance packaged: 1) as
a consumer product; and 2) in a quantity normally used by a member of the general public: Sec. 398 (supplier
labels), Sec. 403 (lab samples), Sec. 404 (supplier MSDSs), Sec. 405 (employer MSDSs), Sec. 406 (current
information), Sec. 407 (availability of MSDSs) and Sec. 408 (disclosure exemptions) [Sec. 395(4)(e)].
BC
1. The provisions on supplier labels and MSDSs don’t
apply if the controlled product is a product, material
or substance packaged as a consumer product and
in quantities normally used by the consuming public
[Sec. 5.3(2)(e)].
LAW
Hazardous
Products Act
OHS Code 2009
2. Employers must maintain an inventory of all
hazardous substances in the workplace in quantities
that may endanger workers in an emergency,
including consumer products [Sec. 5.98(1)].
OHS Reg.
MB
The provisions of Part 35 (WHMIS) on supplier labels and MSDSs don’t apply to a product, material or substance
included in Part II of Schedule I of the federal Hazardous Products Act and packaged as a consumer product in
quantities normally used by a member of the general public [Sec. 35.1(3)(e)].
NB
The following sections don’t apply where the controlled product in a workplace is a product, material or substance
packaged as a consumer product in quantities normally used by the consuming public: Secs. 7(1) to (4) (supplier
lables), Sec. 13 (supplier MSDSs), Sec. 14 (employer MSDSs), Sec. 15 (availability of MSDSs) and Sec. 17 (claims for
exemptions) [Sec. 3(2)].
WHMIS Reg.
NL
The provisions on supplier labels and MSDSs don’t apply when the controlled product is a product, material or
substance packaged as a consumer product and in quantities normally used by the consuming public [Sec. 3(2)(e)].
WHMIS Reg.
The provisions on supplier labels and MSDSs don’t apply when the controlled product is a product, material or
substance packaged as a consumer product and in quantities normally used by the consuming public [Sec. 2(3)(e)].
WHMIS Regs.
NS
The provisions on supplier labels and MSDSs don’t apply when the controlled product is a product, material or
substance packaged as a consumer product [Sec. 2(2)(e)].
WHMIS Reg.
ON
The sections on supplier labels, laboratory labels and MSDSs don’t apply to a product, material or substance
packaged as a consumer product and in quantities normally used by the consuming public [Sec. 4(2)(e)].
WHMIS Reg.
PE
The provisions on supplier labels and MSDSs don’t apply when the controlled product is a product, material or
substance packaged as a consumer product and in quantities normally used by the consuming public [Sec. 2(2)(e)].
WHMIS Regs.
QC
Products, materials or substances packaged as consumer products in a container for domestic use don’t need
MSDSs even if they’re controlled products [Sec. 6(5)].
Reg. Respecting
Information
on Controlled
Products
SK
The provisions on supplier labels and MSDSs don’t apply to a controlled product that’s a product, material or
substance packaged as a consumer product and in a quantity normally used by the public [Sec. 316(1)(e)].
OHS Regs.
YT
The provisions on supplier labels and MSDSs don’t apply when the controlled product is a product, material or
substance packaged as a consumer product and in quantities normally used by the consumer public [Sec. 2(2)(e)].
NWT/NU
Workplace Health
& Safety Regs.
WHMIS Regs.
June 2011 © Bongarde
18
HAZARD PROFILE
Nanoparticles
E
ver heard of nanoparticles? Well, if you’ve ever used a
sunscreen, then you’ve rubbed nanoparticles into your skin.
Nanoparticles are microscopic particles that are between one
to 100 nanometres in diameter, thickness or total size. To put their
size in perspective, a human hair is about 80,000 nanometres wide.
Nanotechnology involves the use, manipulation or manufacture of
these incredibly small particles in products such as fabric, electronics,
cosmetics, eyeglass coating, cleaning supplies and paint.
While the size of nanoparticles is what makes them so useful,
it’s also what makes them potentially hazardous to the health of
workers who handle or work with them. This edition of HAZARD
PROFILE looks at nanoparticles, explaining why they pose a hazard
to workers and how the OHS laws regulate this hazard.
NANOTECHNOLOGY RESOURCES:
Go to the Insider's online partner website, www.OHSInsider.com,
for links to various nanotechnology and nanoparticles resources.
THE HAZARDS
The use of nanotechnology isn’t a fad. According to a nanotechnology
company based in Texas, the global market for nanotechnology-based
products in 2007 was $147 billion—and that figure could grow to
$3.1 trillion by 2015. As the use of this technology has grown, people
have questioned the safety of exposure to nanoparticles for both
consumers and workers using this technology in the workplace.
Nanoparticles are potentially hazardous because their small size
makes them easily absorbed through the lungs, skin or digestive track.
The impact these particles may have on the human body is still unclear.
However, there have been some disturbing findings that suggest
that nanoparticles may pose a health threat. For example, seven
workers at a Chinese print plant who were exposed to nanoparticles
in polyacrylate paste over five to 13 months experienced respiratory
problems including shortness of breath, pleural effusion and pulmonary
fibrosis. Two of the workers eventually died from respiratory failure.
In addition, a study in Nature Nanotechnology found some troubling
similarities between carbon nanotubes and asbestos.
Québec’s Institut de recherche Robert-Sauvé en santé et en sécurité
du travail (IRSST) has done extensive research on the health risks
of nanotechnology and nanoparticles. In its report Health Effects
of Nanoparticles, the IRSST reviewed studies and found that current
knowledge of the toxic effects of nanoparticles is relatively limited and
more research is needed. But it noted that the available data indicates
that some insoluble nanoparticles can pass through the different
protective barriers, be distributed through the body and accumulate in
certain organs and within cells. Toxic effects have been documented
at the pulmonary, cardiac, reproductive, renal, cutaneous and cellular
levels. And there’s evidence that nanoparticles can accumulate
significantly in the lungs, brain, liver, spleen and bones.
Nanoparticles could also pose a safety risk in the workplace. For
example, the US National Institute for Occupational Safety and
Health (NIOSH) says that nano-sized combustible material could
pose a higher risk of fires and explosions than regular sized material
because of its increased particle surface area and potentially unique
properties based on its size.
Workers can be exposed to nanoparticles in the workplace in
various ways. NIOSH notes that the risk of exposure is heightened
during certain tasks, including:
•
Working with nanoparticles in liquid media without adequate
PPE, such as gloves;
•
Working with liquid nanoparticles during pouring or mixing
operations or where a high de­gree of agitation is involved;
•
Generating nanoparticles in non-enclosed systems;
•
Weighing, blend­ing or spraying powdered nanoparticles;
•
Maintenance on equipment and processes used to produce
or fabri­cate nanoparticles;
•
Clean­ing up spills and waste material containing nanoparticles
and cleaning dust collection systems used to capture
nanoparticles; and
•
Machining, sanding, drilling or other mechanical disruptions
of mate­rials containing nanoparticles.
REGULATION OF NANOPARTICLES
The OHS laws don’t address nanotechnology or specifically require
employers to protect workers from the hazards they pose. These
hazards are so new that the jurisdictions haven’t updated their OHS
laws to address them directly. This situation is bound to change
eventually when this technology becomes even more pervasive and
the hazards of nanoparticles become better understood. But in the
meantime, any OHS requirements respecting nanoparticles will be
rooted in the “general duty clause” obligation to guard against
known hazards rather than in an OHS regulation dealing specifically
with nanoparticles.
Without specific OHS requirements, how are you supposed to know
exactly what to do to protect workers from nanoparticles? Although
the possible health effects of nanoparticles are still uncertain, most
groups that have researched the issue advocate a better-safe-than-
For more safety compliance advice, visit us on the web at www.OHSInsider.com
19
sorry approach. That is, they recommend that employers take steps
to limit and control workers’ exposure to nanoparticles. For example,
NIOSH says, “Given the limited amount of informa­tion about health
risks that may be as­sociated with nanomaterials, taking measures to
minimize worker exposures is prudent.” Here are a few sources of
guidance on how to protect your workers from the possible hazards
of nanoparticles:
IRSST. The IRSST published a best practices guide to nanoparticle
risk management and a report on the OHS risks and prevention
measures. These publications recommend the usual three-tiered
hierarchy used to manage other physical hazards:
•
•
•
Engineering controls. Engineering controls are the first choice
because they’re independent of worker behaviour and prevent
contact between workers and nanoparticles. Examples of
engineering controls include modifying processes or steps in
a process to eliminate high-risk operations (such as transfer
of material containing nanoparticles between equipment),
use of closed-circuit equipment, isolation or confinement of
equipment used with nanoparticles and use of ventilation
systems with HEPA or ULPA filters.
Administrative measures. Administrative measures should
complement the engineering controls when those controls
can’t completely eliminate the risk of exposure to nanoparticles
or aren’t reasonably practicable to implement. Examples of
administrative controls for nanoparticle exposures include
safe work procedures for handling, using and working with
nanoparticles as well as cleaning equipment used with
nanoparticles, bans on eating and drinking in areas where
nanoparticles may be present, decontamination and personal
hygiene procedures for workers who may be exposed to
nanoparticles, rules limiting access to work areas where
nanoparticles may be present to necessary personnel only
and training workers on risks posed by nanoparticles and
other administrative measures.
PPE. As with other physical hazards, PPE should be used as a
last resort only when engineering controls and administrative
measures aren’t enough to adequately protect workers.
When it comes to nanoparticles, the key pieces of PPE are
respirators and skin protection, including gloves.
NIOSH. NIOSH released a report on managing the health
and safety concerns related to nanoparticles. Approaches to
Safe Nanotechnology recommends the implementation of a risk
management program to minimize the potential for exposure to
nanoparticles. Such a program should include the following:
•
Evaluation of the hazard posed by nanoparticles based on
available physical and chemical property data, toxicology or
health-effects data;
•
Assessment of the workers’ job tasks to determine the
potential for nanoparticle expo­sure;
•
Use of engineering controls, such as exhaust and ventilation
systems with HEPA filters, at locations where exposure to
nanoparticles might occur;
•
Establishment of safe work practices for handling
nanoparticles, such as the use of vacuums with HEPA filters
for cleaning work areas exposed to nanoparticles;
•
Education and training of workers on the safe work
practices;
•
Development of procedures for selecting appropriate PPE,
including clothing, gloves and respirators, to protect workers
from nanoparticles; and
•
Creation of a system to monitor the health of workers who
work with or are potentially exposed to nanoparticles.
NANOTECHNOLOGY RESOURCES:
Go to the Insider's online partner website, www.OHSInsider.com, for
links to various nanotechnology and nanoparticles resources.
BOTTOM LINE
The use of nanotechnology is a good example of why safety
coordinators need to pay attention not only to what the laws say
but also to what’s actually going on in their industry. OHS laws were
created at a time when nobody had ever heard of a nanoparticle. But
a consensus is building that these particles pose a health threat to
workers—one that could be as serious as that posed by asbestos. So if
you’re the safety coordinator of a company that uses nanotechnology
or handles materials containing nanoparticles, you have the burden
of ensuring that your company takes steps to ensure that worker
exposure to nanoparticles is minimized and controlled.
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June 2011 © Bongarde
20
WINNERS & LOSERS
Are Death Threats Grounds for Immediate Termination?
One of the things employers are supposed to do to control workplace violence is show zero tolerance. Threatening to kill a co-worker or supervisor should
automatically be grounds for immediate termination even if it’s a worker’s first offence, the thinking goes. But if courts and arbitrators really bought into zero
tolerance, they’d automatically uphold any decision to fire a worker for making a death threat, which isn’t what happens. Courts acknowledge that workplace
violence is an unusually serious offence and give employers more than the usual leeway to deal with it. But nothing about termination is ever automatic. The
threat must be credible and not merely a joke. And even a credible threat doesn’t automatically justify termination. Here are two cases illustrating how courts and
arbitrators decide if a credible death threat warrants immediate termination or less severe discipline.
TERMINATION NOT JUSTIFIED
TERMINATION JUSTIFIED
FACTS
A male hospital worker who sterilizes surgical instruments routinely complained to
a female co-worker about how slowly she worked. One shift, he again called the
co-worker over and told her to step it up. He then said, “How would you like me
to slit your throat with these scissors?”—all the while dangling a pair of surgical
scissors for effect. Later that evening, the worker fired off a couple of f*** bombs
in the co-worker’s direction. When management asked him for an explanation, he
made false denials, although he later admitted to and apologized for the incident.
But the hospital wasn’t satisfied and fired him. The union claimed the penalty was
too harsh and demanded that it be reduced to a suspension.
DECISION
An Ontario arbitrator dismissed the grievance, ruling that the firing was justified.
FACTS
A senior cashier clerk was suspended for taking improper discounts
on store merchandise. As he was being escorted out of the store, he
hollered at the store manager, “This is a f***ing witch hunt. Watch it.
I am going to get you back!” The cashier denied any wrongdoing and
filed a grievance. The store dropped the improper discount allegation
but fired the cashier for making death threats, citing earlier threatening
statements he had made against the manager but for which he’d never
been disciplined.
DECISION
A BC arbitrator ruled that termination was too severe a penalty.
EXPLANATION
EXPLANATION
The worker had been with the hospital a long time and had never been disciplined
before. He later apologized to the co-worker for the incident and claimed it was
just a joke. He also suffered severe economic consequences as a result of being
fired. But the arbitrator was unmoved. “Death threats are never appropriate or
justifiable,” he reasoned. And dangling a weapon while uttering them makes an
“intolerable situation” even worse. In addition, lying about what happened only
compounded the problem. The scissors incident wasn’t just horseplay. Although
it wasn’t premeditated, it wasn’t just a momentary flare up either, given the f***
bomb incidents that followed later the same evening. So the arbitrator ruled that
termination wasn’t too severe.
The cashier’s threat wasn’t just horseplay, according to the arbitrator. It
was a serious threat intended to arouse fear. Threats are a particularly
egregious form of misconduct, especially when they’re directed at a
supervisor. But the threat in this case was an “empty” one, the arbitrator
found. The cashier was a 13-year employee with a clean record, no
history of violence and no police record. He was generally regarded
as a likeable guy with a pleasant personality, although he’d displayed
a temper in the past. The threat, however serious, was “impulsive and
provoked.” Accordingly, although the cashier deserved to be disciplined,
firing him was excessive.
Windsor Regional Hospital v. CAW (Serdena Grievance), [2010] O.L.A.A. No.
261, May 25, 2010
Shoppers Drug Mart Store No. 222 v. Sidhu (Sidhu Grievance), [2008]
B.C.A.A.A. No. 67, June 10, 2008
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