For industrial machine guarding, eternal vigilance is the price of freedom: Expert
In 2007 the Ontario Court of Appeal issued its landmark decision in R. v. Dofasco, in which it rejected, once and for all, the notion that training and procedures could take the place of compliance with specific guarding obligations.
Recent high-profile convictions suggest the industrial community would benefit from a refresher in the law on machine guarding obligations and how unforgiving the courts are to those who fail to be duly diligent.
A physical guard must be engaged wherever a machine would otherwise have exposed, moving parts and in-running nip hazards and pinch points such as gears, sprockets, presses, chains and belts that may endanger workers.
In Dofasco, the employer argued that if the injured employee had followed the procedures on which he had been trained, then he would not have been in danger and so the obligation to guard the equipment did not apply.
The Ontario Court of Appeal rejected this submission and ruled the purpose of the guarding provisions is to protect workers both from inadvertent and advertent acts — to take “individual discretion, judgment and degree of concentration and capability out of the equation.”
In the decision for Ontario (Labour) v. MBI Limited in 2008, the Ontario Court of Appeal found “evidence of employee training is incapable in law of establishing the defence of due diligence in ensuring a guard was in place on the machine.”
Warnings and discipline for health and safety infractions are typically good evidence of due diligence. However, publicly forbidding the removal or disabling of guards is insufficient if workers cannot do their jobs without doing so or employers enforce quotas that spur workers to cut corners.
For example, in R. v. De Fehr Furniture Ltd., an employer was fined when a worker suffered serious injuries to his hand after a piece of wood jammed in a saw when he was performing “drop cuts” (basically cutting wood by lowering it onto a rotating saw blade).
The employer argued it had warned the injured employee not to remove the guard before making drop cuts.
The court found it was impossible to perform drop cuts on that equipment without removing the guard over the top of the saw.
After a near miss, workers in a different department had been told to use a piece of equipment called a “pade,” which was designed to perform drop cuts safely. Unfortunately, the injured worker was not told to use the pade or to stop performing drop cuts.
It is no defence to argue the particular process or machine cannot be employed with a guard in place, or it would be operationally impractical or expensive to lockout a machine before accessing a dangerous area.
Remember, courts fashion fines to ensure they are not simply a “cost of doing business.”
In other words, if as an employer you have a machine or process that you cannot employ without running afoul of the guarding provisions in your jurisdiction, you are not in a Catch-22; you are legally obliged to either comply or cease using the machine or process.
Solutions
If your equipment is missing a guard, consider contacting the manufacturer or supplier to inquire about available guards and retrofits.
If that is not workable or no guards are available, the only remaining options are to replace the equipment with equipment that is properly guarded, or to retain the services of a certified safety engineer to conduct a pre-start review (PSR) and implement their recommendations.
PSRs are especially important for production lines where multiple pieces of equipment are involved. Often individual equipment may be properly guarded but danger arises where the machines interact and production phases overlap.
In many instances, particularly involving the use of conveyors and feeds, guards can become hazards themselves when workers are exposed to pinch points and crush hazards between phases and equipment.
Emergency shutoff devices, automatic and manual, are also important for proper machine guarding.
Even “dead-man-switches” are not fool-proof. While a dead-man-switch may protect the operator who has to hold it down to allow the machine to operate, this safeguard does not necessarily protect other workers in the area.
Workers often disable safety devices to improve efficiency — this must be policed and never condoned or tolerated.
If you have historically been lax or inconsistent in enforcement of safety rules, that can be held against you when you move to discipline or terminate employees for violations. There is no time like the present to meet with employees as a group and re-affirm your commitment and expectations.
