When the employer introduced a new piece of personal protective equipment, the union grieved. The arbitrator found that the joint health and safety committee did not always approve new PPE and, in any event, the employer was bound by statute to take every precaution to protect employees.
When the employer at a steel mill prescribed an item of personal protective equipment (PPE) that had not been approved by the mill’s Joint Health and Safety Committee (JHSC), the union pursued a policy grievance.
The union said that the employer could not unilaterally introduce any item of PPE that had not been approved by the JHSC.
Before the Arbitrator, the union argued that language in the collective agreement reserved the right of the JHSC to approve PPE. The union also said that the negotiating history between the parties supported the claim for the committee’s authority.
Article 19.02 said: “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.”
In the union’s view, this language unambiguously gave the JHSC all authority with respect to the approval of PPE in the workplace.
Bargaining history
Any ambiguity about the intent of the parties was resolved by looking at the bargaining history, the union said. The bargaining history between the parties showed that beginning in 1997, the union negotiated changes to the language in Article 19.02, which at that stage made no reference either to the JHSC or to any committee role in selecting PPE.
The current language reflected the parties’ intent to vest the JHSC with the responsibility for approving PPE, the union said.
Indeed, minutes from the meetings of the JHSC provided evidence of the role of the committee in approving PPE, the union said.
The employer said that the evidence that emerged from the bargaining history and the minutes of the JHSC was not so clear-cut.
The union’s notes and testimony concerning the bargaining that occurred in 1997 were not detailed enough to unequivocally support its case. The employer acknowledged that there were instances where the JHSC had recommended types of PPE that were adopted by the employer. However, there were also cases where the employer had introduced PPE without JHSC approval.
In any case, the employer said, a proper reading of 19.02 affirmed the authority of either the employer or the JHSC to prescribe PPE.
“Every precaution reasonable”
Certainly there could be nothing in the language to prevent the employer from meeting its statutory obligations under the Occupational Health and Safety Act (OHSA) to “take every precaution reasonable in the circumstances for the protection of a worker.”
The employer said its obligations under the OHSA could not be avoided or delegated and that it must have the untrammeled ability to comply with the requirements of the OHSA — including the ability to prescribe PPE.
The Arbitrator agreed.
A central thrust of the OHSA is to place certain responsibilities on employers and their supervisors for operating and maintaining safe workplaces and with that level of responsibility there is a concomitant level of authority, the Arbitrator said.
“[S].25(2)(h), which, in addition to the strictures set out in s. 25(1), requires an employer to ‘take every precaution reasonable in the circumstances for the protection of a worker.’ This provision, in my mind, is easily broad enough to require an employer to turn its mind to items of personal protective equipment, aside from those which are prescribed, which might be reasonably necessary for the protection of workers in the employer’s workplace, even when they might not necessarily be of general application to other workplaces or industries. Further, I am of the view that s. 25(2)(h) obligates an employer to require the use of personal protective equipment by employees, beyond that which is prescribed by the [Occupational Health and Safety Act], when circumstances warrant.”
The employer could not delegate its statutory responsibilities, the Arbitrator said.
“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 [OHSA].”
The grievance was dismissed.
