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CANADA LABOUR CODE
PART II
OCCUPATIONAL SAFETY AND HEALTH
Review under section 146 of the Canada Labour Code, Part II
of a direction issued by a safety officer
Decision No.: 95-017
Applicant: Clipper Navigation Inc.
Victoria, B.C.
Represented by: Leonard Tall, and
Darrell E. Bryan
Respondent: Canadian Auto Workers
Vancouver Island District Council
Represented by: F.C. (Frank) Greenlay
Mis en cause: Jim Beynon
Safety Officer
Human Resources Development Canada
Before: Serge Cadieux
Regional Safety Officer
Human Resources Development Canada
An oral hearing was held in Victoria, B.C. on September 27, 1995
Background
This case began with a refusal to work that was exercised at Clipper
Navigation's Belleville terminal in July 1994. After being informed of
the situation, the safety officer determined that there was not a
continuing refusal to work as the employee had returned to work.
Nonetheless, the safety officer informed Mr. Greenlay, the union
representative who had reported the refusal to work to him, that the
situation would be investigated as an occupational safety and health
complaint.
The safety officer reported in his Narrative Assignment Summary that:
The issue was with the moving of containers of luggage with a
manually operated hydraulic pallet jack with metal wheels with a
gross weight often up to and over 1000 pounds. The distance to be
moved is approximately 200 feet, 100 relatively flat, smooth
concrete and 100 bumpy asphalt with a slight grade (1' in 100'
approx.).
It was agreed that the terminal manager would look into the feasibility
of acquiring electric pallet jacks. In the meantime, a two person
procedure to move containers of luggage would be implemented. The need
to evaluate the force necessary to move the said containers was also
discussed and a direction was given to the employer on June 12, 1995
under paragraph 141(1)(a) of the Canada Labour Code, Part II (hereafter
the Code) to ensure that the employer would have the appropriate tests
conducted. That direction was not appealed by the employer.
On June 17, 1995 another employee exercised his right to refuse
dangerous work. The employee had been instructed that the containers
had to be moved by one person and, as reported by the safety officer,
was sent home as a result of his refusal to work. The safety officer
advised Mr. Greenlay that the responsibility to address the
disciplinary action taken against the refusing employee rested with the
Canada Labour Relations Board (CLRB). However, in discussing the issue
of handling materials with pallet jacks, the safety officer was made
aware that this longstanding issue remained unresolved. The safety
officer reacted by issuing a direction (APPENDIX-A) to the employer
under paragraph 145(2)(a) of the Code in which the safety officer
directed the employer "to take measures immediately to protect any
person from the danger". That direction was appealed by Clipper
Navigation Inc..
Submission of the Employer
The employer submitted that although it has purchased two electrically
operated pallet jacks at a significant cost (approximately $5000.00
each) in response to the direction, it wishes to "pursue an appeal or
reconsideration of this matter so that it is clear that in the event
that an electric pallet jack is inoperative, we can utilize one
dockhand to pull a bin to the Customs Clearance area." Furthermore,
the employer insists that the direction is not valid because it is not
supported by the evidence. The results of the tests (APPENDIX-B) that
were conducted by two independent engineering firms1 show that the
breakaway force necessary to start the movement of a bin filled with
luggage and the force necessary to sustain its movement are well below
the acceptable standard values referenced by the safety officer.
Mr. Tall also suggests that this issue is an issue of manning as
opposed to safe operation.
Submission for the Employees
Mr. Greenlay states that the real issue here is what constitutes a safe
method of moving the bins full of luggage. He is asking the Regional
Safety Officer to look beyond the physical nature of the equipment and
the safe operation of the equipment and focus on the human health
aspect of the operation. According to Mr. Greenlay, there is a need to
look at the connection between a single dockhand moving the said bins
and the injuries that are occurring. The safe method of moving the
bins is by using two employees to do the job.
Decision
The issue to be decided in this case is whether a bin loaded with
luggage, and weighing approximately one thousand pounds (1000 lbs.),
can be moved safely by a single employee by using a manual pallet jack.
The safety officer gave a direction under paragraph 145(2)(a) of the
Code and consequently, found the above situation to constitute a danger
to an employee while at work. The basis for the direction given by the
safety officer is the excessive force required to both initiate the
movement of the bins and to sustain their movement and the high injury
rate amongst Clipper Navigation's employees.
In support of the force required to initiate the movement of the bins
and to sustain their movement, the safety officer referenced the work
of Dr. K.H.E. Kroener, Professor of Ergonomics and Industrial
Engineering, Wayne State University, Detroit, Michigan. Specifically,
the safety officer suggested that the maximum force acceptable to pull
the bins should not exceed the following values , i.e.
ACCEPTABLE PULLING FORCES
MATERIAL HANDLING: KHE KROEMER
WAYNE STATE UNIVERSITY
SEX BREAKAWAY SUSTAINED
Male 29 kg (63.8 lbs) 17 kg (37.4 lbs)
Female 24 kg (52.8 lbs) 14 kg (30.8 lbs)
__________
1 One test was carried out by a Mr. Paul Brodeur who is likely an
employee of Clipper Navigation Inc.. Notwithstanding this, since Mr
Brodeur is not an independent consultant or engineering firm, I will
disregard his results on the basis that they are not issued from an
unbiased source.
Those values are taken from Dr. Kroener's publication MATERIAL
HANDLING, LOSS CONTROL THROUGH ERGONOMICS, table 4.8, MAXIMUM
ACCEPTABLE FORCES OF PULL. They represent, for both sexes at a hand
height of 64 centimetres, the maximum force acceptable to ninety
percent (90%) of the subject population (all experienced workers).
However, "the data do not represent individual capacity limits; rather,
they represent the opinions of a sample of experienced material
handlers as to what they would handle willingly and without
overexertion." Of particular interest in this case is that the data
reported represents the force required every two (2) minutes to pull a
distance of two point one meters (2.1m). In the case at hand, the
employees are required to pull the bins on a distance of two hundred
feet (200 ft).
The results of the tests carried out by the engineering firms and
submitted as evidence by Clipper Navigation Inc. which, incidentally,
do not appear to take into consideration limits for female employees,
are lower than the values referenced by the safety officer. On that
basis alone, it would appear that Clipper Navigation does not require
its male employees to overexert themselves. However, as I noted
above, the results are, in my opinion, flawed because they do not
represent the force required to pull the bins the full distance of
200 feet. The Kroener study above does not look at the forces required
on such a distance.
The DRAFT ERGONOMICS REGULATIONS issued by the Workers' Compensation
Board of British Columbia that was also submitted by the safety officer
reports values for sixty one meters (61m) which corresponds to the 200
ft. distance above. According to those regulations, the maximum force
acceptable for males and females for a pull occurring every thirty
minutes (30 min.), decreases significantly with the distance. It is as
follows:
DRAFT ERGONOMICS REGULATIONS
SEX BREAKAWAY SUSTAINED
Male 21 kg 13 kg
Female 18 kg 6 kg
The values that were reported by the two engineering firms are as
follow:
ENGINEERING FIRMS
BREAKAWAY SUSTAINED
18 kg and 19.32 kg 13.6 kg and 10.45 kg
On the basis of this evidence as it would apply to male employees only,
Clipper Navigation Inc. cannot be found to be in contravention of the
Code and the Canada Occupational Safety and Health Regulations
(hereafter the Regulations). Further support for this conclusion is
that the values reported by the Kroener study or by the DRAFT
ERGONOMICS REGULATIONS issued by the Workers' Compensation Board of
British Columbia are not statutory limits referenced in the
Code or the Regulations. Those values can only be used as a
guide in the field of ergonomics and, technically speaking, have no
force of law. Nonetheless, an unacceptably high number of injuries have
occurred as a result of pulling the bins loaded with luggage and, I
would suspect, that was the issue the safety officer attempted to
resolve.
In my opinion, the injuries are not occurring strictly as a result of
having to use an excessive force to pull the bins. They are occurring
because an improper and therefore, unsafe method is being used. The
photograph of one employee pulling a loaded bin shows the employee
initiating the pull, facing the bin, both hands on the handle of the
pallet jack and exercising the force necessary to get the bin in
movement. However, the next photograph shows the employee pulling the
bin with his back turned to the bin and only one hand on the handle.
The result of using this technique is that the employee has to exercise
twice as much force with a single hand than he would have if he was
using both hands. The likely reason for doing this is that the
employee can accelerate the pace of work and see the distance that he
must cover. The consequence is that injuries occur.
In my opinion, a safer method2 of pulling the bins is for both hands
to remain on the handle at all times and to have the employee take more
time to cover the distance since he or she must look behind his or her
back to ensure safe operation of the pallet jack. Consequently, for
those circumstances were the electric pallet jacks are inoperative, the
employer could be allowed to use one male employee to pull the bins if
this method is strictly adhered to by the employee. It is impossible
for me to comment as to whether female employees could do the same
since the data reported by the engineering firms is inconclusive in
this respect. More tests would be needed to decide this aspect of the
case.
__________
2 It is not my contention that the following method is the safety and
preferred method to be used. The safety and health committee for the
work place in question or the safety officer could assist the employer
in this respect.
In those circumstances where that method cannot be used or is not
recommended, a two person team should be used where one person pushes
the load resting on the pallet jack and the other person pulls the load
using just enough force to guide the pallet jack. Another method, such
as using an electric pallet jack, could also be used. Obviously,
there are many options.
Whichever method is used, it should be tailored to each individual by
taking into consideration factors such as the following:
1) the worker is male or female;
2) the horizontal distance of the push or pull;
3) the frequency of the push or pull;
4) the height of the worker's hand;
5) the presence of a grade in the surface;
6) the type of surface;
7) the training in the proper procedure to push or pull;
8) the physical condition of the employee;
and any other condition appropriate to the task. To the extent that an
improper and unsafe method for pulling bins loaded with luggage was
being used, I find that the direction is justified. However, I note
that the direction makes reference to the wrong provision authorizing
the provision contravened in the Regulations. In fact, section 14.46
of the Canada Occupational Safety & Health Regulations is not
authorized by paragraph 125(t) of the Canada Labour Code, Part II. It
is authorized by paragraph 125(q) of the Code which provides as
follows:
125. Without restricting the generality of section 124, every
employer shall, in respect of every work place controlled by the
employer,
(q) provide, in the prescribe manner, each employee with the
information, instruction, training and supervision necessary to
ensure the safety and health at work of that employee;
For all the above reasons, I HEREBY VARY the direction issued under
paragraph 145(2)(a) of the Canada Labour Code, Part II on June 20, 1995
by safety officer Jim Beynon to Clipper Navigation Inc., by replacing
the two references in the direction to paragraph 125(t) of the Canada
Labour Code, Part II by references to paragraph 125(q) of the Canada
Labour Code, Part II.
Decision rendered on October 25, 1995
Serge Cadieux
Regional Safety Officer
APPENDIX-A
IN THE MATTER OF THE CANADA LABOUR CODE -
PART II (OCCUPATIONAL SAFETY AND HEALTH)
DIRECTION TO EMPLOYER UNDER SS. 145(2)(a)
The undersigned Safety Officer, did, on the 20th day of June 1995,
attend at the work place operated by Clipper Navigation Ltd., being an
employer subject to the Canada Labour Code, Part II, at 254 Belleville
Street, Victoria, B.C., V8V 1W9, the said work place being sometimes
known as Terminal, and having conducted inquiries at the said work
place; consider that the use or operation of a machine or thing
described hereunder or that a condition exists in the work place which
constitutes a danger to an employee while at work;
The pulling of full luggage containers of unknown weights on manual
or hand pallet jacks (trucks) on the walk from the dock to the
Customs unloading area by one person, contravenes paragraph 125(t)
of the Canada Labour Code, Part II;
125. Without restricting the generality of section 124, every
employer shall, in respect of every work place controlled by the
employer,
(t) ensure that the machinery, equipment and tools used by
the employees in the course of their employment meet
prescribed safety standards and are safe under all
conditions of their intended use;
and 14.46 of the Canada Occupational Safety & Health Regulations;
Where, because of the weight, size, shape, toxicity or other
characteristic of materials, goods or things, the manual
handling of the materials, goods or things may be hazardous to
the safety or health of an employee, the employer shall issue
instructions that the materials, goods or things shall, where
reasonably practicable, not be handled manually.
HEREBY DIRECTS the said employer pursuant to paragraph 145(2)(a) of the
Canada Labour Code, Part II, to take measures immediately to protect
any person from the danger;
Issued at Victoria, B.C., this 20th day of June 1995.
Jim Beynon
Safety Officer
To: D. Pirog
Terminal Operations Manager
Clipper Navigation Ltd.
254 Belleville Street
Victoria, B.C. V8V
APPENDIX-B
ACCEPTABLE PULLING FORCES
MATERIAL HANDLING: KHE KROEMER
WAYNE STATE UNIVERSITY
(provided by Jim Beynon)
SEX BREAKAWAY SUSTAINED
Male 29 kg (63.8 lbs) 17 kg (37.4 lbs)
Female 24 kg (52.8 lbs) 14 kg (30.8 lbs)
SEATTLE TEST BY CRANE CONSULTANTS
680 lbs baggage + 240 lb tare wt. = 980 lbs (445.45 kg)
BREAKAWAY SUSTAINED
40 lbs (18 kg) 30 lbs (13.6 kg)
SEATTLE TEST BY PAUL BRODEUR
665 lbs baggage + 240 lbs tare weight = 905 lbs (411.36 kg)
BREAKAWAY SUSTAINED
30 lbs (13.64 kg) 20 lbs (9 kg)
VICTORIA TEST BY MARTIN HOLDEN, P. Eng
Baggage weight 730 lbs
Container 240 lbs
Total 970 lbs (440.9 kg)
TEST PULL BREAKAWAY FORCE SUSTAINED PULL
Westerly 40 lbs 23 lbs
Easterly 45 lbs 23 lbs
Mean 42.5 lbs (19.32 kg) 23 lbs (10.45 kg)
SUMMARY OF REGIONAL SAFETY OFFICER DECISION
Decision No.: 95-017
Applicant: Clipper Navigation Inc.
Respondent: Canadian Auto Workers
KEYWORDS: Pull, force, pallet jack, ergonomics
PROVISIONS: Code: 145(2)(a), 125 (q)
Regs: 14.46
SUMMARY: A direction was given to Clipper Navigation Inc. because a
safety officer determined that employees were required to use excessive
force to move a container loaded with luggage and weighing
approximately 1000 lbs, using a manual pallet jack on a distance of 200
feet.
The Regional Safety Officer VARIED the direction. The RSO found that
it was not the force required to move the bin that was causing the
injuries but the method used. The RSO also found that the direction
quoted the wrong provision of the Code and corrected it accordingly