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‘Workplace’ definition confirmed for health and safety purposes

By Jeffrey R. Smith
| www.cos-mag.com

The Federal Court has confirmed that the definition of “workplace” for the purposes of health and safety inspections does not include areas where employees perform their jobs that are outside the employer’s control.

In July 2012, representatives for the Canadian Union of Postal Workers’ local joint health and safety committees (LJHSC) in Burlington, Ont., proposed that inspections of the routes of individual letter carriers be included as part of Canada Post’s workplace hazard prevention program for the Burlington Depot. The LJHSC argued that while letter carriers were delivering mail, public areas in which they ventured were part of the workplace.

Canada Post declined to include public areas as part of the workplace for the purposes of the hazard prevention program, but advised that delivery agents could report hazards on delivery routes to their supervisors.

The LJHSC representative at the Burlington Depot submitted a complaint with Human Resources and Skills Development Canada (HRSDC) that only part of the workplace was being inspected and letter carrier routes should be inspected as well. HRSDC sent a health and safety officer to investigate the complaint.

The health and safety officer found Canada Post had violated the Canada Labour Code by failing to ensure the LJHSC inspected all or part of the workplace on a monthly basis so each part of the workplace was inspected at least once a year. The code states that “every employer shall, in respect of every workplace controlled by the employer and, in respect of every work activity carried out by an employee in a workplace that is not controlled by the employer, to the extent that the employer controls the activity” carry out such inspections. The officer ordered Canada Post to take steps to stop this contravention.

Canada Post appealed the order, arguing the officer’s interpretation of “workplace” in the code was too broad. Including the routes as a whole and each stop on the routes of letter carriers as part of health and safety inspections would create “an absurd result,” said the corporation.

Canada Post submitted that it didn’t have control over delivery locations or hazards that may arise, so the question of control should factor into what constitutes a workplace for the purposes of safety inspections.

The union countered that while Canada Post didn’t control the workplace locations along delivery routes, it controlled the activity on those routes, which meant the code’s requirement for inspections applied.

[strong]Inspection order for letter carrier routes rescinded

[/strong]

An appeals officer found that health and safety legislation was designed to prevent accidents and injuries at work, so “workplace” should be interpreted broadly so as much as possible could be done to avoid them. However, the officer noted that “the purpose of the workplace inspection obligation is to permit the identification of hazards and the opportunity to fix them or have them fixed. Control over the workplace is necessary to do so.”

Ultimately, the appeals officer determined that the requirement to inspect all parts of the workplace at least once a year did not apply “to any place where a letter carrier is engaged in work outside the physical building” as Canada Post did not have control over where the letter carriers performed their work. The officer also pointed out, in rescinding the order, that Canada Post “has many policies, programs and assessment tools that evaluate and promote the health and safety of their employees in all elements of their work.”

The union appealed this decision to the Federal Court, seeking a reinstatement of the health and safety officer’s original contravention order. It reiterated the argument that Canada Post controlled the work activities on letter carrier routes and points of call, right down to how the carriers walk the routes, and the corporation had the ability to take action to address and resolve hazards on the routes. The appeals officer’s definition of “control” over the letter carriers’ activities was too narrow and restrictive by only considering circumstances where an employer has exclusive access to alter a workplace, said the union.

Canada Post argued that inspection obligations should differ depending on whether the employer controls the workplace or controls the work activity, as the latter would place a limitation on what can be inspected. For example, if the union’s interpretation were to be applied, it would place a requirement on the corporation to inspect public transportation when a letter carrier used it to get to her route, said Canada Post. In addition, it couldn’t enforce the requirement to ensure all permanent and temporary buildings and structures that it neither owns nor has a right to alter to meet safety standards.

The court referred to the principle stated in Elmer Driedger’s Construction of Statutes, which stated that the text of a legislative act should be read in its context and normal sense, with consideration of the object of the act and the intention of Parliament when it passed the act. It found the appeals officer took this approach in finding the code drew a distinction between workplaces controlled by the employer and those that are not and not all obligations applied when the employer didn’t control the workplace. The court found this was a reasonable interpretation based on “a harmonious reading of the words in their context.”

[strong]Employer can’t inspect areas outside its control or access

[/strong]

The court found the appeal officer’s finding that “the employer can only satisfy certain obligations imposed by the subsection when in control of the workplace” was based on the fact the purpose of the requirement could only be achieved when the employer was able to identify and fix hazards — which it couldn’t if it had no control or access to areas where letter carriers went on their routes.

The court also found it was reasonable for the appeals officer to conclude that an employer didn’t control the workplace where many points of call were private property or public places, and therefore couldn’t carry out inspections and accomplish the objectives of the inspection requirement.

In addition, the court agreed with the appeal officer’s distinction between workplace control and work activity control in determining whether the inspection obligations applied. Because it was found that Canada Post didn’t have control over the workplace, it wasn’t necessary to address control over the work activity because the corporation was limited in what it could do to the physical workplace anyway, said the court.

The court found the appeals officer’s decision that Canada Post didn’t have any control over hazards and conditions on the routes of letter carriers and therefore didn’t have an obligation to inspect them was reasonable. It dismissed the union’s appeal.

“The appeals officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control,” said the court. “In my view the appeals officer’s interpretation of (the inspection requirements in the act) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.”

This article originally appeared in the May 11 issue of Canadian Employment Law Today, a sister publication of COS.

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