OLRB rejects appeal of material handling orders

Nov 15, 2012

OLRB rejects appeal of material handling ordersAn Ontario brewery has lost an appeal of orders issued after a Ministry of Labour ergonomist observed a driver handling product on a routine delivery route. Most male workers would be physically incapable of performing some of the driver's tasks, the ergonomist noted in her report.

In its appeal, the employer defended its delivery practices on several grounds, including past claims history, hiring practices, and a corporate commitment to health and safety. The Ontario Labour Relations Board (OLRB) rejected every argument put forward by the employer.

"It's not uncommon for workplaces to underestimate hazards," says Workplace Safety & Prevention Services ergonomist Sandra Patterson, "but the consequences could be serious. Just because an injury hasn't occurred doesn't mean the workplace is safe, or that there aren't opportunities to make it safer. There could be a number of risk factors that haven't been controlled.

"Hazard assessments are a useful tool in identifying, assessing and prioritizing hazard control efforts," continues Sandra. "And keep in mind they’re not just a health and safety tool. Besides reducing the risk of injury, these assessments can help sustain productivity, improve product and service quality, and reduce the risk of property damage and loss."

Read on for more about the OLRB decision and what workplaces can learn from it.

What the inspector observed

In the presence of a ministry inspector, the brewery driver made seven stops, delivering up to 1570 kg (3450 lbs) of product as follows:

  • 17 50-litre kegs, each weighing 63 to 68 kg (140-150 lbs)
  • 10 30-litre kegs, each weighing 40 kg (90 lbs)

In the process, the ergonomist observed the driver

  • lifting and lowering 50-litre kegs to and from a double-stacked position in the truck
  • lowering 50-litre kegs from the truck door to the ground
  • lowering a 50-litre keg down a flight of stairs, walking backwards, and partially supporting the keg with his thighs. He lowered it to the ground from the second last step
  • carrying a 30-litre keg up more than 20 steps

An analysis later conducted by the ergonomist found that three out of four male workers would be incapable of performing most of these tasks. The ergonomist applied the weights handled, the frequency with which they were being handled, and the way in which they were handled to a recognized ergonomic standard, the Snook and Ciriello tables.

The ergonomist subsequently issued four orders requiring that the kegs be lifted, lowered and carried "in such a way and with such precautions as to not endanger a worker." Additional orders required the employer to devise and submit compliance plans.

The employer appealed, requesting that the orders be suspended. In its ruling against the employer, the OLRB noted that a refusal to suspend the orders would not have a "meaningful negative effect" on the employer. However, it could harm the health and safety of the delivery drivers.

For a summary of the employer's arguments and the Ontario Labour Relations Board (OLRB)'s response, see the table below.

The Employer's Arguments

The OLRB's Response*

  • Suspending the orders would not affect worker health and safety. The brewery has been delivering kegs since 2000, and has filed no compensation claims for delivery-related injuries in this time. In 2011, the brewery delivered 45,000 kegs without a single lost-time injury.
  • The employer has not established that worker health and safety will be assured if the orders are suspended: It has not suggested any changes to its delivery practices, and asserts that what it has done before can simply continue.
  • The absence of injury claims does not establish that suspending the orders won't put the drivers' health and safety at risk. There can be any number of reasons why no lost-time injuries have been recorded for the drivers in question.
  • It is not necessary to wait for a catastrophic injury before determining that activities put workers at risk.
  • The employer is committed to maintaining and continually improving worker safety. Its driver recruitment process ensures it hires only the most suitable, skilled and competent delivery drivers who are capable of handling heavy kegs. The employer also provides ongoing training in safe practices.

In support of its position, the employer relies on its hiring and training practices and its good injury history. However, the employer gave no explanation for how it would ensure it would maintain such a workforce over time.

  • The employer acknowledged that most workers could not meet the job’s physical demands. However, its drivers do not match the standard worker population. They are hired for their ability to handle heavy loads, and trained on how to reduce related risks.

The Snook and Ciriello tables show that any industrial worker performing a manual handling task that is acceptable to <75% of the working population is 3X more susceptible to lower back injuries. This establishes that, regardless of the employer's recruiting practices, the brewery's delivery drivers are 3X more susceptible to a lower back injury than other workers.

  • By targeting only the brewery with these orders, the ministry is applying the Occupational Health and Safety Act inequitably, putting the employer at a competitive disadvantage.

"If competitive disadvantage were to be a significant factor in a suspension request application, every order made by an inspector would be subject to suspension."

* Read the entire Ontario Labour Relations Board decision

What employers can learn from this decision

HSO Network News asked WSPS ergonomist Sandra Patterson what messages these workplace issues and the OLRB’s decision contain for workplaces. Here's what she told us.

  1. Base your health and safety policy and practices on sound information, not assumptions. Building an effective health and safety program starts with understanding the hazards.
  2. Apply a hierarchy to hazard control: elimination, substitution, engineering controls, administrative controls and finally, as a last resort, personal protective equipment.
  3. The higher the risks, the more controls you should have in place. There's rarely one single solution. Wherever possible, start with controls at the top of the hierarchy and work your way down. Engineering controls are the most effective because they address the hazard at the source.
  4. Assess hazards with and without controls to determine whether the controls reduce the risks to a tolerable level.
  5. Apply continuous improvement principles to your hazard assessments. For instance, review and update your hazard assessments
  • annually if no changes have taken place since the last assessment or review (e.g., at the same time you conduct your annual review of the health and safety policy)
  • if you're changing equipment, processes or practices
  • a major injury or near-miss has occurred
  1. If you don't know how to do something, involve someone who does. All workplace parties can contribute to the hazard assessment process. Workers and supervisors, for example, know the ins and outs of the job best, and can often provide practical, actionable insights on what’s not working well and how it could be improved. But there may also be not-so-obvious hazards and assessment processes that require detailed and experienced analysis before you can identify the root cause of hazards and potential solutions.
  2. Protecting workers creates a competitive advantage, not a disadvantage. By applying ergonomic principles proactively, we can prevent injuries, reduce costs, and contribute to product and productivity improvements. It's about working smarter, not harder. If you see productivity flagging toward the end of the shift, is it possible to adjust workstations in a way that reduces fatigue or discomfort? A worker who still feels good at the end of his or her shift will be much more productive and at less risk of injury than a worker who's distracted by a sore back or shoulder.

How WSPS can help

  1. Review our extensive library of resources on managing musculoskeletal disorders (MSDs)
  2. New! Check out Managing Hazards, a half-day public course, also available for on-site delivery.
  3. Scan our hazard assessment resource page, which provides a full list of e-courses, publications, and other training opportunities.
  4. Talk to a consultant about conducting a hazard assessment in your workplace. Call 905-614-1400 or 1-877-494 WSPS (9777), or email customercare@wsps.ca.
  5. Explore other WSPS resources that contribute to health and safety performance, such as:
  1. Read on about hazard assessment, and how other firms are improving their health and safety performance:

The photo illustrating this article is from a stock photo source, and not intended to represent the vehicle used by the brewery.