Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | June 2016 | News 'Workplace' definition confirmed for safety purposes Federal Court confirms decision tying obligation to conduct safety inspection related to employer's control over location BY JEFFREY R. SMITH THE FEDERAL COURT has confirmed that the definition of "workplace" for the purposes of health and safety inspections does not include areas where employ- ees 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 indi- vidual letter carriers be included as part of Canada Post's work- place hazard prevention program for the Burlington Depot. The LJHSC argued that while letter carriers were delivering mail, public areas in which they ven- tured were part of the workplace. Canada Post declined to in- clude 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 submit- ted a complaint with Human Resources and Skills Develop- ment Canada (HRSDC) that only part of the workplace was being inspected and letter car- rier 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 fail- ing to ensure the LJHSC inspect- ed 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" must carry out such inspections. The officer ordered Canada Post to take steps to stop this contravention. Canada Post appealed the or- der, arguing the officer's inter- pretation of "workplace" in the code was too broad. Including the routes and each stop on the routes would create "an absurd result," said the corporation. Canada Post submitted that it didn't have control over the actual delivery locations or any hazards that may arise, so the question of control should factor in 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 did control the activity of employees on those routes, which meant the require- ment for inspections applied. Inspection order for letter carrier routes rescinded 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 offi- cer 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 require- ment 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 con- trol over where the letter car- riers performed their work. In rescinding the order, the appeals officer also pointed out that Can- ada Post "has many policies, pro- grams and assessment tools that evaluate and promote the health and safety of their employees in all elements of their work." The union appealed this deci- sion to the Federal Court, seeking a reinstatement of the health and safety officer's original contraven- tion order. It reiterated the argu- ment that Canada Post controlled the work activities on letter car- rier 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 re- strictive by only considering cir- cumstances where an employer has exclusive access to alter a workplace, said the union. Canada Post argued that in- spection obligations should differ depending on whether the em- ployer controls the workplace or controls the work activity, as the latter would place a limitation on what can be inspected. For exam- ple, 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 Credit: ValeStock (Shutterstock) Employer > pg. 4

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