Workers Health & Safety Centre

Ruling out competitive disadvantage OLRB dismissed suspension application

 Ruling out competitive disadvantage OLRB dismissed suspension application
The Ontario Labour Relations Board has dismissed an application by Steam Whistle Brewing to suspend orders relating to delivery of large beer kegs to bars and restaurants. The decision was dated August 10, 2012. In dismissing the application, Vice-Chair Shouldice included a strong statement against giving any weight to “competitive disadvantage” as a form of prejudice when deciding on a suspension application.
Specifically, the MOL orders required the following tasks be done, “with such precaution as to not endanger a worker.”
  • lifting and lowering of 50 litre kegs to double stacked position,
  • lowering 50 litre kegs from the delivery truck to the ground,
  • lowering 50 litre kegs down stairs, and
  • carrying 30 litre kegs up stairs.
In suspension applications, the OLRB generally places the onus on the applicant to address three factors. The applicant must show it would be prejudiced without suspension, that the suspension would not endanger worker safety, and that it has a strong prima facie case for a successful appeal of the orders. The Vice-Chair did not find Steam Whistle’s arguments compelling in regard to any of the three factors, resulting in the dismissal.
On the factor of prejudice, Steam Whistle Brewing argued that implementing the orders would prejudice the company by placing it at a competitive disadvantage to other brewing companies. However, Vice-Chair Shouldice rejected this argument out of hand. “To my mind, the question of competitive disadvantage ought not to be a factor in assessing prejudice,” the Vice-Chair wrote. “If competitive disadvantage were to be a significant factor… every Order made by an Inspector would be subject to suspension as a matter of course,” reasoned the Vice-Chair.
Arguments for the other two factors were based on the central claim by Steam Whistle Brewing that, because of the unique characteristics of their workers, their safety was not endangered. The employer did not dispute MOL findings that, based on Snook and Curiello Tables, the lifting, lower, carrying, etc. was dangerous for 75% of the workforce. However, it claimed the workers doing the work were drawn from the remaining 25% of the employee population to whom there was no danger. This argument was rejected by the OLRB as Steam Whistle Brewing supplied no evidence of any hiring or employee retention processes in support of the claim. In failing to support its claim, the Vice-Chair found the company had not met the onus placed on it to show no danger to workers and that, “it has not established a strong prima facie case that it is more likely than not to succeed on the main appeal.”