Rio Tinto Alcan cites health and safety requirements
A British Columbia employer has won the right to implement a shirt-tucking rule at its plant since its collective agreement allows it to follow statutory health and safety requirements in the case of an impasse with the union over such rules.
Rio Tinto Alcan operated an aluminum smelter in Kitimat, B.C. The smelter had a joint health and safety committee and several sub-committees responsible for specific issues, as established by the collective agreement.
One of the sub-committees was the personal protective equipment (PPE) committee, whose role was to evaluate and approve PPE worn by employees at the smelter. The PPE committee consisted of one union and one management representative from each of five different areas of the smelter.
Over a period of several years, the smelter was significantly rebuilt, leading to changes in safety requirements.
In July 2014, both the company and the union agreed to a new shirt and coverall made of wool. The colour of the shirt was orange, compared to the blue of the old one, in order to provide higher visibility and greater safety.
While the shirt itself was approved by both parties, there were no discussions on how it should be worn by workers.
However, the company wanted employees to tuck in the shirts, as an untucked shirt could lead to a greater exposure to air contaminants or molten metal if it rode up on an employee. It could also become entangled in equipment or be lit by electric spark flashes.
The new shirts had ventilation under both arms and at the back, so the company wasn’t concerned with heat stress.
Rio Tinto Alcan’s parent company — based in France — had a best practices guide that stated it preferred workplace shirts to be tucked in.
The company’s smelter in Quebec had a policy requiring work shirts to be tucked into employees’ pants, but the Kitimat smelter had no such policy.
Employees who didn’t want to tuck in their pants were allowed to wear coveralls — which 40 per cent of worker at the Kitimat smelter did.
The company performed risk assessments for each of the areas of the smelter, and risks such as moving machinery, burning metal caught in pants, and fire risks were reasons for recommendations for wearing clothing fit close to the body.
One area — the casting centre — that dealt with hot metal vehicles and the wearing of protective jackets, trousers, socks, and boots inside vehicles or booths had a recommendation to wear loose clothing to “maximize cascade effect.”
Union questioned rule
In May 2015, nearly one year after the shirts were approved, the union, Unifor, inquired as to whether they had to be tucked in or not. The company said shirts had to be tucked in at all areas except for the casting centre. It also reiterated that coveralls were an option for employees who didn’t want to wear tucked-in shirts.
Unifor objected to the policy as it hadn’t been discussed when the new shirts were implemented and some employees who had to work in small spaces or who were overweight didn’t want to tuck in their shirts.
In addition, in certain areas, tucking in shirts could cause a safety risk, as splashing molten metal could get caught in the crevice between the tucked-in shirt and pants.
Unifor said there should be a risk assessment for each occupation in the smelter to determine if tucking in was necessary.
A unilateral rule was unfair and a violation of the collective agreement, it said, especially since the collective agreement stated that if a joint committee was unable to reach agreement on a health and safety matter, it could take the matter to the workers’ compensation board to investigate and try to resolve it.
Arbitrator Stan Lanyon found that under the B.C. Workers’ Compensation Act, employers were ultimately responsible to ensure the health and safety of all employees. The act also stated that every employee must take “reasonable care to protect” their own health and safety in the workplace.
This was also indicated by the collective agreement, which stipulated that “it is the responsibility of management to make adequate provision for the safety and health of all employees during the hours of their employment.”
The collective agreement also said that “all standards established by law shall constitute minimum acceptable practice to be improved upon by agreement” of the smelter’s occupational health and safety and environmental committee and its sub-committees.
Where there was disagreement, the parties must act in accordance with the legislation.
Lanyon pointed out that B.C.’s occupational health and safety regulations required that “if there is a risk to an employee from exposure to hazardous substances, the employer must either eliminate the exposure or control the harmful levels, by amongst other things, providing ‘personal protective equipment’” that protects the skin against “contamination, infection, puncture or abrasion, or any other adverse effect.”
This includes the instruction that employees “must wear properly fitting protective equipment appropriate to the work being done and the hazards involved” and for circumstances with moving machinery or electrically energized equipment, “the clothing of the worker must fit closely about the body.”
Lanyon found that the health and safety regulations supported Rio Tinto Alcan’s policy that the new work shirts must be tucked into employees’ pants. Since the collective agreement stipulated that the statutory requirements must be followed if there was an impasse in the joint health and safety committee, the shirt-tucking policy must remain, the arbitrator said, in dismissing the union’s grievance.
The arbitrator also noted that if the union had issues with risk assessments in particular areas of the smelter, it was free to grieve any of them individually.
For more information see:
• Rio Tinto Alcan Inc. and Unifor, Local 2301 (Change to Personal Protective Equipment Standards), Re, 2016 CarswellBC 1547 (B.C. Arb.).
