By: Canadian Occupational Health & Safety News July 3, 2006
TORONTO (Canadian OH&S News) -- An Ontario Labour Relations Board (OLRB) panel has suspended an inspector's order that a company ensure "readily accessible" hard copies of Material Safety Data Sheets (MSDS) be available to employees until the board rules on the company's practice of using a CD-ROM to store and retrieve MSDS. On the evidence, board arbitrator Susan Serena said it appeared likely that the order under appeal would be successfully appealed.
Douglas West, a Ministry of Labour (MoL) inspector, visited Bolton-based United Lumber & Building Supplies Co. Ltd on April 24. He tried unsuccessfully to retrieve an MSDS from a computer's CD-ROM.
A worker member of the joint health and safety committee, Sandy Williams, told the arbitration panel that the inspector was dissatisfied when the MSDS appeared on the computer "sideways" and a copy could not be immediately printed because the printer was being used to print another large document, according to the May 31 panel decision. West issued an order requiring that a "hard copy" of every MSDS be readily accessible.
United Lumber & Building Supplies Co. argued it is required to maintain over 8,000 MSDSs that have to be regularly updated as new products become available. It said worker safety is assured because all the data sheets are readily available to workers on CD-ROM and they all received training on accessing the MSDSs. The order, the firm argued, would require it to print out each MSDS and repeatedly update its binder of MSDSs. The company also said the inspector misquoted the relevant section of the Occupational Health & Safety Act (38[5]) when he used the term "hard" copy when referring to the requirement that "copies" of MSDS be readily accessible.
System modified to allow easy retrieval
Williams, the worker representative, stated that the problems relating to print-out were rectified. He said it was easier and quicker for workers to obtain sheets through the computer than to look through 21 binders full of the data, each 41/2 inches wide.
In her decision, the arbitrator ruled that suspending the order would not adversely affect worker safety pending the outcome of the company's appeal of an order relating to the use of the CD-ROM for storage and retrieval of the data sheets. "Suspension of the order would not endanger worker safety as it appears that workers are able to retrieve the correct MSDS is a timely manner using the CD-ROM and computer system and that the retrieval system [has] been modified to address the problems that occurred during the inspector's visit," Serena writes.
Elizabeth Rankin, senior oh&s consultant with Gowling Lafleur Henderson LLP in Toronto, points out Section 54(1)(c) of the OH&S Act authorizes an inspector to request a copy of an MSDS. The section states that an inspector may "require the production of any drawings, specifications, licence, document, record or report and inspect, examine and copy the same." In her consultations with employers, Rankin says she always advises employers to have a copy of an MSDS available in case "you need one right then and there" or in situations such as a power failure. She says employers often ask if it is acceptable to have MSDSs available on a computer terminal.
"By law you can, but they are required to be readily accessible and all employees who work in close proximity [to potential hazards] have to have access to them," she says. "Sometimes not all employees will have access."
Michael Fortier, a lawyer with Torys LLP in Toronto, says employers can't ignore the importance of providing "access" to MSDS when asked to by an inspector. "For example, say they come and do an inspection all day and say, 'By the end of the day, when we leave, can you give us your material safety data sheets?' and your comment back to them is, 'Our computer's been down all day.' I mean, that may stop them from getting it that day, but presumably, it's contrary to what you would expect to be your obligations." |
