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HomeMy WebLinkAbout1989-1815.Andrews et al.92-05-15 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEE$ OE L 'ON TA RIO GRIEVANCE C,OMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST, SUtTE 2~00, TORONTO, ONTARIO. M5G 1Z8 TELEPHOIVE/T~£EPHOhlE: ~4 ]6) 326- ~388 180, RUE DUNOA~ OUEST, ~UREAU 2 ~, TORONTO ~ONTARIO). MSG ~Z8 FAC~I~LE/TELEcO~E : (4 ~6) 326- ~s~5/8~ ~N ~E ~TTER OF ~ ~ZT~TZON Under T~ CRO~ EHP~YEES COL~CT~ B~G~N~NG ~CT Before THE GRI~CE SETTLE~ BO~ BEdEN OPSEU (~drews et Grievor - ~d - The Cro~ in R~ht of On2ario (~in~st~ o~ Health) ~pl°~er BEFOg: S. Golde~erg Vice-Chai~erson S. Urbain Me. er M. O'Toole Me. er FOR THE R. Stephenson GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Crawford EMPLOYER Deputy Director Legal Services Branch Ministry of Health HE~RING September 14, 1990 October 19, 30, 1990 December 14, 1990 June 3, 1991 DECISION This matter concerns the grievances of five air ambulance attendants employed by the Ministry of Health. OPSEU is seeking a declaration that the Ministry has failed to "make reasonable provisions for the safety and heaith" of these employees as required by Article 18 of the Collective Agreement, together with an order requiring the Ministry to provide the safety equipment (helmets and visors) which the grievors maintain are necessary to satisfy Article 18. Counsel for the union noted that one cf the five, Andy DeBoer, is no longer in the classified service, so that Article 18 does not apply to him and any prospective remedy would be for the benefit of the remaining four grievors, namely Messrs. Andrews, Ashley, Madigan and Theriault. The grievors are trained para-medics who provide advanced life support services to patients while they are transported by helicopter from smaller to larger hospitals, and occasionally from the scene of an accident to a hospital. The services provided by the grievors to the patients include interpreting lab values and x-rays, taking instructions from health care professionals and maintaining patients' airways by intubation or ventilation, administering IV solutions, blood and medications and inserting other lines such as gastric tubes, catheters, chest tubes, etc. Because of the noise in the helicopter, the attendants maintain communication with physician and crew through headsets, consisting of earpieceS and a microphone positioned at the mouth. They fly most of the tim~ on a Sikorsky S-76 twin engine dual control helicopter, with two pilots and a "medical configuration" in the back, with piped in oxygen and compressed air, and suction and incubator plugs and cupboards for medical equipment. The patient compartment, separated by a screen from the pilots, is six feet long, five feet wide and four feet high, with the attendants sitting on each side of the patient's stretcher. The grievors identified three health risks involved in their work. First, the danger of head injury, which could be sustained in the course of a flight by bumping the head against the walls of the patient compartment in rough weather, or a much more severe injury in the event of a crash. Second, ear damage sustained by reason of the whine of the transmission inside the aircraft and the engine noise outside 'it; and third, damage to the eyes in "slope landing" situations in which dirt and grit are stirred up by the downwash from the rotor blade during the time that the attendants must exit from the aircraft and return to it. Essentially, the grievors' case was that Ministry should provide them, at its cost, with helmets properly equipped to address these three risks. The grievors conceded, however, that their headsets do damp down the noise in the aircraft and that they were also provided with ear protectors outside the aircraft, but their contention was that this equipment did not sufficiently accomplish the necessary noise attenuation. However, after their expert witness indicated that tests had shown that the equipment provided by the Ministry was comparable in its effectiveness with the helmet the grievors preferred, they abandoned that portion of their case. The result was that the risks in issue were limited to the first and third previously mentioned. We wilt accordingly review the evidence with respect to the protection sought for each of these risks and with respect to the provision currently made by the Ministry in that regard. 1. HEAD PROTECTION (i) In flight Two of the grievors, Scott Andrews and Andy DeBoer, testified in this regard. Mr. Andrews has been an.air ambulance attendant at Buttonviiie air base since December of 1987. He works twelve hour shifts, three times a week, three day shifts followed by three nights'. He testified that there were about two or three calls per shift, each of which takes about three hours from start to finish. About 4% of the calls are "scene calls" in which the aircraft must descend onto a roadway or isolated area to pick up the patient. As mentioned, the Sikorsky S-76 is used for about 80% of the calls, and there are two other back-up helicopters. One of these, the Bell 206 Long Ranger, is used very rarely, perhaps for 1% of the calls and is a lighter, smaller aircraft, with one pilot and a very tight compartment for the patient and attendants. The other aircraft is a Belt 212, which is utilized in just under 20% of the calls. This aircraft has a larger patient compartment than the Sikorsky (see Exhibits 7 and 8), but with less headroom and more metal plugs, boxes, mounts and meters sticking out of the walls and ceiling. Mr. Andrews' testimony was that he had received the most bumps to his head in the Bell 212, but also by banging against steel corner pieces, IV poles and doors in the Sikorsky. His evidence was that he had struck his head more than 20 times in the nearly three years that he had been employed in the Ministry's air ambulance service. He testified that he was distracted by the pain, which interfered with his concentration, which in turn was crucial in maintaining patient care, especially with regard to ventilating (breathing for) the patient or monitoring medication. Mr. Andrews admitted on cross- examination, however, that he had never formally reported any such bump to his head nor made any Workers' Compensation claim in that regard. Andy DeBoer has worked full-time for the Ministry as an air ambulance attendant at Buttonville, from April of 1987 to May of 1990, and continues to do so on a part-time basis. He is the only one of the attendants at Buttonville who has purchased his own helmet, which he has worn on the job, both full-time and part-time, since December of 1989. Mr. DeBoer's evidence was that he had also bumped his head inside the aircraft, but that this was not serious and that his helmet had improved his safety in that regard (to a small degree). He did note further that on one occasion his partner on a flight had sustained a head injury (to the top of his head) which drew blood and required stitches in the hospital. It was not clear what the circumstances were in which this injury was sustained. The final witness called by the grievors was Jocelyn Pedder, B.Sc., of Biokinetics & Associates Ltd.,' who had conducted tests and prepared an expert evaluation of the protection that might be afforded to the grievors by a helmet. Specifically, she had conducted tests on two helmets, namely, the Clark series K and the Gentex series 5. The Gentex was a full scale helmet containing its own headset, while the Clark was more of a cap covedng the top of the head and fitting over the existing headsets which had been provided to the grievors, and which were also made by the Clark company. Ms. Pedder's report concluded that the most likely head impact (for these grievors) is one sustained with structures inside the helicopter dudng routine flight. This might occur during flight turbulence and while activety attending to patients. She noted, in her evidence, that the Sikorsky was more streamlined in this regard but contained a hard-angled cylinder attached to the light fixture which could cause a laceration to the head, though relatively minor in nature. Her report concluded that such head impacts would tend to be of relatively minor severity and that the risk of head injuries would probably be prevented by such levels of head protection as that afforded by current industrial helmets. Her specific testing indicated that the Clark helmet was sufficient.to provide protection with respect to the sort of knocks or bumps sustained in flight, although the Gentex helmet with its more extensive shell and polystyrene liner would give even better protection. She a~so noted that the Gentex was considerably more expensive than the Clark, which could be fitted over the existing headset whereas the Gentex contained its own. Finally, Ms. Pedder noted that although the Gentex was considered (by six subjects) "better looking" than the Clark, it was more prone to heat build up and the Clark was "easier to don". (ii) In a crash Ms. Pedder's report concluded that although the likelihood of a helicopter crash may be relatively Iow, many are survivable. She cited a U.S, army study indicating that head injuries were responsible for 31.5% of all fatal injuries and 19.7% of all major injuries. She concluded that helmets are an important factor in the severity of head injuries sustained in these crashes and cited a further U.S. army study showing that roughly twice as many fatal or severe head injudes were sustained by occupants not wearing helmets as by those who were wearing helmets in helicopter crashes. The use of a helmet affording relatively good impact protection and energy absorption, and Which will stay on the head, would, in Ms. Pedder's'opinion, significantly increase the chance of an air crew surviving a crash and doing so without or with less severe head injury. Ms. Pedder also referred to a file maintained by the Transportation Safety Board of Canada with respect to accidents between 1976 and 1990 for the three aircraft used by the Ministry of Health. These civilian accident records showed a far greater number of accidents for the Bell 206 than the Bell 212 or the Sikorsky S-76, but also showed that there were a vastly greater number of Bell 206s registered in Canada and a correspondingly greater number of hours flown by that aircraft than there were with respect to the Sikorsky. Ms. Pedder noted that although allowances have to be made for the different circumstances in military and civilian cases with respect to the statistical likelihood of a crash of a rotary winged aircraft, once a crash occurs, the violence seen by the occupants of the aircraft is similar. With respect to the two helmets she tested, her conclusion was that the 'Clark helmet was inadequate to provide any reasonable level of protection in a crash situation, because it was too likely to come off the head and could not stand the level of force applied. For that matter, the Gentex helmet, although it had a far better retention system, and would afford some protection against a greater impact, received only a qualified endorsement. It was considered capable of affording "some protection" in a crash situation even though it had only been tested at a level of impact about one-half of that which would occur in a crash. The Ministry's chief witness with respect to this issue was Robert Olakely, Operations Manager of Canadian Helicopters ltd. (which supplies the aircraft to the Ministry of Health) and a helicopter pilot since 1974. Mr. Blakety noted that helicopter flying (for air ambulance purposes) is subject to different regulations in the United States and Canada. FirSt, in the United States, discretion is given to the pilot .or his employer with respect to night flying weather minima, i.e. the rules concerning flight ceilings and visibility. The Canadian rules are more strict and require pre-determined routes, minimum altitude guaranteeing obstruction clearance, three miles forward visibility day or night, and a ceiling above the minimum altitude. Mr. Blakely noted that about 25% of air ambulance flights in Ontario occur at night and that there is a heightened risk of crashes into obstacles at that time, which accounts' for some of 'the U.S. crash experience. As a result, he stated that "we've set our own standards". Since unlit obstructions cannot be seen, landings and take-offs are reStricted to pre-inspected sites. The Ministry's pilots do not make "scene calls" (which necessarily involve uninspected sites) at night, as is done in the United States. The second major difference between the two jurisdictions is that all of the helicopters flown by the Ministry (with the rare exception of the Bell 206), are flown by two pilots. Very few of the air ambulance programs in the Un[ted States have this requirement. Moreover, although Transport Canada regulations permit'a pilot to fly the Sikorsky with 150 hours of experience, the MiniStry sets the requirement for an air ambulance captain at 2000 hours of flying experience. Of the 17 captains at the three bases in the Ministry's program, the average level of experience is in the 4000 hour range, which translates into about 10 Years of experience. Mr. Blakely stated that the moSt common cause of accidents is pilot errors the risk of which is minimized by the required experience. Finally, Mr. Blakely noted that CHL has in place a network of flight safety representatives, who are not subject to operational control by base managers and who can force pilots to stop flying if they deem an~,l'~ing unsafe. Mr. 81akeJy also noted that-helmets Were not required for pilots by Transport Canada's regulations and that his company's policy was to permit helmets to be worn by pilots who elected to purchase them, but not to provide or require helmets for them, nor to provide them to passengers. Mr. Blakely noted that his company has provided the aircraft for the Ministry's air ambulance program since its inception in 1977, that approximately 30,000 hours of flying time have been logged in the program since then and that there had never been an accident during such flight operations. In cross-examination, Mr. Blakely agreed that "accident" is a defined term by Transport Canada, and that a number of "incidents" have occurred in the course of the air ambulance program, such as forced landings by reason of apparent engine or transmission failure or foul weather, a change of course by reason of a severe storm, and a damaged rotor at a scene call when the rotor blade hit a tree limb. These are representative instances and Mr. Blakely conceded that there were others similar in nature. He acknowledged that helicopter flying had a certain amount of risk and that scene calls had doubled over the last few years, though they were still a small proportion of the calls made by the service. Mr. Blakety acknowledged that 'his company's aircraft had suffered crashes including fatal ones, outside the air ambulance program, but indicated that higher safety standards were maintained in the air ambulance program, which appeared to have had effect in the accident free record of that program. (iii) Generally The Ministry's Position with respect to helmets was set out by John Stott, Administrator of dedicated operations for the Emergency Health Services Branch of the Ministry of Health. Mr. Stott indicated that helmets were initially supplied to the air ambulance attendants when the program was initiated in 1977, but had fallen into disuse over a period of time. In the Ministry's view, having recently reviewed the matter, the balance of relevant considerations was inconclusive with respect to the necessity of helmets as a safety measure. Mr. Stott indicated that the Ministry was concerned about some negative features of helmets which could interfere with the operational duties of air ambulance attendants,, such as their weight, discomfort and heat. He noted that, given the cramped quarters of the patient compartment, the helmet might cause spinal problems to some attendants during routine flight or in a forced landing. As far as he was aware, no study had proven or disproven the value · of helmets as a safety measure in an air ambulance service. He noted that not one federal authority in the world has made helmets mandatory for air ambulance attendants, and that only about 10% of the 140 air ambulance programs in the U.S. have adopted them for attendants, even on a shared basis (Exhibit 10). He further stated, however, that if he were convinced of their., value, he would make helmets mandatory and supply them to the attendants. Two further witnesses, Kenneth Murray and Walter Lyle, testified with respect to helmets. Mr. Murray, currently Administrator of communications and facilities in the Emergency Health Services Branch, had been an air ambulance attendant at Buttbnville in 1977 and for a number of years thereafter. He wore a helmet for the first few years, but gave it up because it was heavy and, being .six feet tall, he found that he could not sit in the Bell 212 without bending his head or slouching, causing a stiff neck, headache or backache. He also found the helmet hot and difficult to use in the close confines of the cabin. Walter Lyle is an attendant in the program in Thunder Bay, with four years of experience in that position. He testified that he had worn a borrowed helmet for one 12 hour shift, found it heavy and somewhat hot and preferred not to wear it, even bearing in mind the risks. In this regard, we note that, according to Mr. Stott, there are 27 full-time air ambulance attendants in the Ministry's program,, operating out of three bases for rotary winged aircraft. Only four have brought this grievance and counsel for the grievors accordingly confirmed in argument that he does not seek an order making helmets mandatory for all attendants, but only providing them at the Ministry's expense to these grievors (and presumably to any other attendants who choose to wear them). Moreover, Mr. Stott indicated that, even though Article 18 can be invoked only by the full-time complement of 27 attendants, nevertheless, 'from an operational point of view the safety rules in place with respect to that complement will affect part-time attendants as well (though Mr. Stott was not clear as to the number of regular part-time attendants). The distinctive order sought in this case, whereby the Ministry is to fund the acquisition of optional helmets as a health and safety measure, but not require all attendants to wear them, is of great importance and we wilt return to it later in these reasons. 2. EYE .PROTECTION Mr. Andrews described the situation when a "slope landing" is required on a scene call. As noted above, scene calls constitute about 4% of the calls made by the air ambulance crews. Of these, some involve landing on prepared surfaces such as highways, but in other cases, rough ground or sloping ground is involved and the aircraft must hover just above the ground while the attendants exit with their stretcher, collect the patient and bring him back on board. In those situations, the rotor must continue running and create a "downwash" of air with sufficient force to lift a five ton aircraft. This airflow stirs up debris consisting of dirt, gravel, grass or snow, as the case may be. Mr. Andrews noted that in those situations, he has to shield his eyes from the wind and blowing grass or grit, and is sometimes unable to see the co-pilot signal when it is safe to come back into the aircraft. In one case he and his partner had .to wait for the co-pilot to come up to them and take them back on board. On cross-examination, Mr. Andrews admitted that by the time he left the aircraft, most debris had blown away, but reiterated on re-examination that debris was still blowing and gale force winds were coming down at him when he left the aircraft. Mr. DeBoer had limited experience with slope landings, apparently confined to two training sessions. His evidence was that because he wore his helmet and visor, he had no difficulty seeing the pilot and aircraft, whereas his partner, who wore only a headset, had to cover his face to protect it from debris and could not see anything. Mr. DeBoer noted that he covered his face below the visor with his arm (to prevent the debris from blowin~ up inside the visor). Mr. Btakely agreed that there was a risk of debris thrown up by the downwash in a slope landing situation and stated that goggles might be appropriate. Mr. Stott noted that goggles are supplied on all aircraft to the attendants as part of a communicable disease kit, and can be used in slope landings. He conceded in cross-examination that the goggles were provided to minimize the likelihood of blood or other infectious substance entering the wearer's eyes and that they had not been designed for debris. But he maintained that they would function better for that purpose than a visor which would permit dirt to come up under the opening. Mr. Murray testified that, even when he wore a helmet, he had never used a visor. He wore glasses in that period and never had a Problem with debris. In cross-examination, he indicated that scene calls were very rare in the early years when he was flying regularly as an attendant. Finally, Mr. Lyle agreed that there was always debris where a slope landing was necessary and that he felt a need for eye protection; he had found, however, that wearing sunglasses was a suitable remedy and he had never had an eye injury. There is one further bit of evidence contributed by Ms. Pedder, who volunteered on cross-examination that the goggles which are available to the grievors have problems, namely, fogging up and breaking the seal of the hearing protectors worn outside the aircraft (as is also done by glasses).. This fragment of evidence is unsatisfactory, however, since there was no indication that Ms. Pedder had tested or even examined those goggles and her observation may simply have been hearsay. On balance, it cannot be relied upon. Ms. Pedder did determine, as part of her study, that the visors stowed in the Gentex helmet and the face Shield which can be studded onto the Clark helmet could significantly reduce exposure to debris. 3. PRE-GRIEVANCE HISTORY There was considerable evidence given, and mutual recriminations exchanged, with respect to the efforts made by the parties to resolve 'these issues in the spirit of Article 18 of the Collective Agreement, which requires that they "shall cooperate to the fultest extent possible in the prevention of accidents and in the reasonable promotion of safety and health". Essentially, the grievors testified that when they found the unused helmets in a locker in Buttonvilie in 1988 and asked if they coutd use them again, they were allowed a two month '~rial period" to do so and told by Terry Turner, then the operations supervisor for the air ambulance service, that the Ministry would provide them with helmets if they liked them. Although most of the attendants who tried the helmets did like them, they were told by the base manager, Mr. Murray, that the helmets would be sent out and refurbisl~ed because of their age and state of repair. They were thereupon put off for a period of months and their enquiries deflected, until they were finally told that the Ministry would not proceed with the helmets because they did not consider them essential .equipment. Mr. Murray confirmed that he had gathered up the helmets in the spring or summer of 1989 and returned them to the ambulance storehouse to be inspected and refurbished. He stated that Mr. Turner thereupon suggested that a study be done as to the benefits of helmets for air ambulance attendants. Photocopies were obtained of a magazine article from the United States, but Mr; Turner wished to have specific parameters developed with respect to a study to be carried on in Ontario. Finally, Mr. Turner, who is now the administrator of occupational health and safety and education services with the Emergency Health Services Branch of the Ministry, confirmed his involvement, as operations supervisor for the air ambulance service, in the 1989 discussions. He determined, at meetings with 5 district managers, that there were no other requests for helmets outside of Buttonville, where helmets had been brought back into use by some of the attendants in 1988. Mr. Turner confirmed that the Buttonville helmets were sent to the ambulance stores to be evaluated, since they were then 11 years old and may not have been in adequate condition. It was ultimately determined that these helmets were too old and that the issue should be resolved on the basis of current equipment. Mr. Turner indicated that after he had assumed his present position, the matter of helmets was raised with a working group which met with him every three months or so, consisting of one air ambulance attendant from each base, including Mr. DeBoer from Buttonville. Mr. Turner proposed that a formal trial period be initiated to determine the value of helmets and that an evaluation method be devised. He stated that Mr..DeBoer thought any study was a waste of time and was very confrontational. But he admitted that the other representatives favoured a study, though he had earlier stated that they were all against it. Mr. Turner did not clearly indicate why no triaJ period was thereupon implemented. He also admitted that six months transpired between the removal of the helmets to the storehouse and the decision to discard them and that the grievors may not have been property informed as to what was doing on. Essentially, Mr. Turner's position was that the lack of consensus, even among the attendants, with respect to the benefits of the helmets as against the operational and hearth risks of their use was the determining consideration for the Ministry. Trial and evaluation should be undertaken. Yet he had directed that all helmets in use in 1988 be removed, including one worn continually since 1980 by an air ambulance attendant named John Wultchyn without any apparent adverse effects upon his performance of his duties. Mr. Turner further conceded that when the Ministry arrived at its present policy of allowing attendants to wear their own helmets if they preferred to do so, the Ministry did not require the attendants to seek approval with respect to the make and model of the helmet chosen in order to minimize the operational and health risks it was concerned about. 'In all, Mr. Turner's evidence does not reflect credit on .the Ministry. We are left to wonder why the intended trial period and study of helmets did not proceed. In effect, each side accuses the other of bad faith in this regard, but we find the evidence inconclusive and do not consider it necessary to determine the matter. What remains clear is that the Ministry's present position, which has been communicated to the union, is that air ambulance attendants are permitted to wear helmets if they choose to do so and provide them for themselves. The question remains whether, in all the circumstances, this position is sufficient to discharge the obligation of the Ministry to make reasonable provisions for the safety and health of its employees during the 'hours of their employment. But the question also remains whether the contention of these gdevors that the Ministry be ordered to provide such helmets to those who wish them, without requiring them as a safety measure for all attendants, can be sustained. To these issues we now turn. 4. LEGAL ANALYSIS AND RESULT It is best to begin by setting out Article 18 of the Collective Agreement in its entirety: ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS 18.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall cooperate to the fullest, extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. 18.2 The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees. We note first that even though Section 18(1) of the Crown Employees Collective Bargaining Act reserves to the employer the exclusive right to determine the "kinds and locations of equipment", we are of the view that Article 18 of the Collective Agreement still has application. The jurisprudence of this Board has consistently held (see O_PSEU, 1252/85 (Joliffe), Brlek, 1466/87, etc. (Dissanayake) and Ethier, 959/87 (Wright)) that grievances such as the present one are properly arbitrable and that we have jurisdiction to make the declaration and grant the remedy sought. We are also of the view that the Board's jurisprudence has consistently set out the appropriate standard for such cases (see OPSEU, 69/84, 70/84 (Samuels), Brlek, supra, Stockwell. I764/87 (Wilson) and Watts/King, 1367/90, 1368/90 (Kaplan)) which may be summarized in the following three propositions: 1. There is no obligation on the employer to guarantee an employee's safety against every possible risk, no matter how remote the possibility that it will occur; 2. It is necessary to balance the safety of the employees against the operational needs and purposes of the institution or program in which they work; and 3. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks. Additionally, the cases indicate that it is incumbent initially upon the union to establish a risk to the safety and health of the affected employees sufficient to call into question whether the ,employer is making reasonable provisions to address or avoid that risk, at which point the Board must determine whether the employer has acted in accordance with the Collective Agreement. If we now consider the evidence in light of the'foregoing, it is apparent that the grievors have established a risk of head injury which is inherent in their work; but in our view, the standard of reasonableness requires that we consider both the gravity of the risk and its likelihood of occurrence. In this regard, the evidence called by the grievors clearly establishes that the head injuries which might be sustained in a helicopter crash are often fatal or at least very severe; but the evidence calfed by the Ministry sufficiently establishes that the likelihood of such a crash is minimized by the stringent safety rules and procedures in place with respect to night flying, visual flight rules, pre-inspection of landing sites, predetermined routes and the requirement of two pilots with a minimum of 2,000 hours of experience. Most importantly, the air ambulance (helicopter) program has an accident-free record since its inception in 1977. Conversely, although the grievors have established a fair likelihood of bumps to the head being sustained within the aircraft in routine flight and forced landing situations, the evidence indicates that the - 16 - gravity of this risk is slight, since these bumps normally do not amount to any kind of injury. There was only one incident described (by Mr. DeBoer) which could be considered an injury. Mr. Andrews' evidence was focused more on the risk to patient care than to his own health and safety. Mr. DeBoer clearly treated these bumps as not serious and none of the other grievors gave evidence in that regard. As for the third risk which was identified, we find that the evidence of the grievors was simply not sufficient to establish a sufficiently serious level of risk not already addressed. Although the evidence did indicate a risk of eye injury from debris stirred up in slope landings, it was apparent that wearing glasses or sunglasses might be sufficient to address that risk, as indicated by Messrs. Murray and Lyle. Moreover, it was also apparent that no effort had been made by the grievors to utilize the goggles provided to them for this purpose and there was no probative .evidence before us to indicate that those goggles, though provided for other purposes, do not work in slope landing situations. Rather, the evidence with respect to possible eye injury was yoked to the service of the grievors' case for a particular helmet, whose visor might provide the. necessary protection. Even then, there was evidence to suggest that debris might get underneath that visor more easily than some of the other protective devices available. On balance, then, we are of the view that the grievors' case for the provision of the' desired helmet must be vindicated by a consideration of the risk of head injury alone. In this regard, the evidence is somewhat inconclusive. As indicated above, the evidence may not be sufficient to establish a risk of head injury with the requisite degree of both gravity and likelihood of occurrence. On balance, however, given the eXtreme severity of crash injuries, even with their reduced likelihood, we find that the grievors have met the threshold requirement in this regard and that we should proceed to consider whether the Ministry has complied with its obligations. In this regard, however, it should be noted that the balancing of employee safety against operational needs will be affected by our observations as to gravity and likelihood of the health risk. Given that the likelihood of serious injury (in a crash) is already being minimized by the safety precautions in force, the Ministry has properly raised the operational and health concerns to be balanced against that risk. These pertain to the weight and heat of the helmets, their possible effect on the heatth of the attendants in the confined quarters in which they wOrk, the consequent effect on their performance of their crucial life support functions, and their cost. It is also cleady relevant, when considering the standard of reasonableness in this case, to note that no federal regulation requires such safety devices for air ambulance attendants. The evidence of Ms. Pedder was helpful with regard to the properties of particular helmets and their comparative ability to afford protection against bumps in flight or crash injuries; but that evidence is more relevant to remedy than to our finding with respect to compliance with the obligations under Article 18. The most serious difficulty which we find with the grievors' case, however, arises from the fact that these are five individual grievances, brought as a group grievance, rather than being brought as a union or policy grievance. (For a useful discussion of the various types of grievances see the decision in Haynes, 1246/89 (KJrkwood), following Re Canadian Broadcastinq Corp. and NABET (1973) 4 L.A.C. (2d) 263 (Shime)). Accordingly, the union does not seek a uniform order requiring the employer to provide helmets for atl of the full-time air ambulance attendants in the bargaining unit. The grievors seek an order requiring that helmets be provided to themselves, on the basis of their individual concerns, but expressly do not seek to compel the Ministry to require that such equipment be worn by all of their colleagues. Counsel for the Ministry has argued that Article 18 of the Collective Agreement only requires the Ministry to provide safety gear where that equipment is required to be worn by all employees (see 18.2). She argues that the Ministry is not called upon to finance matters of personal preference. As a matter of logic alone, Article 18 may be construed so as to permit a finding that an employer has failed to make reasonable provisions for the safety and health of its employees in. failing to provide non- mandatory safety equipment; but reading both parts of the Article together, and bearing in mind that the equipment in question is to be worn by employees, the overall intention seems to be otherwise. In order to issue the declaration sought by the grievors here, we should have to find that there is a safety risk which the Ministry has failed sufficiently to address (by failing to provide helmets). Only if such a finding were made could we properly declare that the Ministry had failed to make reasonable provisions for the health and safety of its employees. In our view, however, the language of "reasonable provisions" imports an objective standard and does not permit the "provisions" to vary with the subjective preferences of the employees. Once there is a finding that there is an undue risk to' health and safety so as to warrant an order requiring the Ministry to take certain steps, those steps would have to be required for the benefit of all affected employees. In such a case, the Ministry would be effectively ordered to make hetmets, avaiiabte to (full-time) air ambulance attendants, and to make them available, not as optional equipment, but as mandatory equipment. By analogy, as far as we are aware, construction workers are not given an option whether to wear hard hats or not, as they 'prefer; nor are hockey players given a choice whether or not to wear helmets. Where the risks of head injury are such that a helmet is necessary to satisfy the standard of a "reasonable provision" for safety, then personat preference can no longer be a factor. In allowing preference to be accommodated: the grievors are effectively conceding that the "reasonabie provision" standard may be satisfied by the provision of optional helmets for those who wish them. But in such event, the Ministry's argument becomes compelling: the Ministry is presently in compliance with its obligation, because it allows the grievors to wear helmets if they choose, while permitting their colleagues not to do so. This permits each individual to weigh the crash risk against his or her day to day comfort, in light of industry norms; if, in all of the circumstances, that is the reasonable provision for the employer to make, then we cannot discern an intent in Article 18, considered as a whole, to require the employer to provide those 'helmets. Only in the event that the safety of the employees, objectively considered, requires that they wear such helmets at a!l times, regardless of their preference, would the employer be properly ordered under Article 18 to provide that equipment. In att of the circumstances here, we are of the view that the employer has met the objective standard in Articte 18 by allowing the grievors to wear helmets if they wish to do so. Given that there is no evidence of any industry norm or regulatory standard being breached, and in light of the variations in gravity and likelihood of the risks involved, and of the operational and health concerns raised by the Ministry, and given further that there is no evidence that the other .attendants want helmets and some evidence that some do not, ~t is our view that the Ministry cannot be said to have failed to have made reasonable provision for the health and safety of these employees. We find some support for our approach to this matter in the case of Bain et al., 1102/87 (Ratushny), in which it was held that where the preferences of employees were relevant to the matter in issue (shift schedules), and the schedule in question had not been shown to increase the risk to health by a significant degree, and there was no clear employee preference to which the employer could respond, it was impossible to conclude that the employer acted unreasonably in failing to adopt the schedule preferred by the grievors. It is instructive to compare this result to that in the case of OPSEU (Union Grievance), 1190/89 (Stewart) in which the Board found that reasonable provisions for health and safety had not been made and specifically held that "an individual arrangement with one employee to accommodate that person's particular concerns does not fulfill the employer's obligations to all of its employees under Article 18.1 of the Collective Agreement" (p.19), Before we leave this matter, however, we feel constrained to observe that we have been troubled by the evidence with respect to the efforts of the parties to arrange for a trial period and evaluation of helmets, an effort.which appears to have aborted' without a satisfactory explanation. As we noted above, Mr. Turner's evidence suggested that the Ministry simply decided to proceed no further with the trial period because of Mr. DeBoer's confrontational behaviour. But that behaviour does not seem to warrant such a drastic result. It should not have been surprising to Mr. Turner that those Who were already convinced of the value of helmets, and that they would not adversely affect the employees' health or operational efficiency, might display such an attitude. But the purpose of the trial period was ostensibly to determine, for the entire complement of these employees, whether helmets might be worn without any such adverse effects and might have sufficient safety benefits for the Ministry to provide them. This, in turn, should have been appreciated by Mr. DeBoer. We note that Exhibit 10 indicates that nearly 30% of the air ambulance, programs in the United States were carrying out some process of evaluation .of helmets for medical crew. Even if we may have concluded that the Ministry, in al~ the circumstances, cannot be said to have failed in its obligation to make reasonable provisions for health and safety, we are concerned that the clear- obligation of the parties under Article 18.1 to "cooperate to the fullest extent possible in the prevention of accidents and. Jrt. the reasonable promotion of safety and health of all employees" may have been inadequately attended to. Accordingly, we strongly urge the employer and the union to resume an ongoing cooperative effort to 'evaluate helmets for air ambulance attendants. We conclude that on the basis of the evidence we have heard, and in light of · the nature of these grievances and our reading of Article 18 of the Collective Agreement, these grievances are dismissed~ DATED at Toronto, Ontario, this 15~:t, day of May ,1992. ~ercj~ ,,1_ Dissent" (dissen~ atl:ached) S.L. G°ldenb S. Urbain, Vice-Chairperson Member Member Dissent 1815/89 OPSEU (ANDREWS et al) and MINISTRY OF HEALTH I have read the award of the majority and with respect I must dissent. The crucial difficulty this member has with the decision of the majority is in their risk assessment. The evidence indicated that there was a genuine risk of eye injury from debris stirred up in slope landings. The evidence indicated and the majority conceded that the grievors have established "... a fair likelihood of bumps to the head being sustained within the aircraft in routine'flight and forced landing situations." Under the Collective Agreement the Employer has an obligation to make reasonable provisions for the safety and health of its employees. It was the Employer's position that its employees could rely on sunglasses or goggles to prevent, eye injuries during slope landings. Yet sunglasses are not designed to provide eye protection from flying debris. The goggles are similarly designed for an entirely different purpose. " As far as the attendants suffering from bumps to the head because of turbulance or forced landings, the Employer has not provided any protection to its employees from that risk. However, the Employer has allowed the attendants to wear clearly out-moded helmets that were not properly fitted. In summary, the risk of eye injury in slope landings is genuine and the Employer's response to that safety risk is unreasonable and therefore in violation of Article 18 of the Collective Agreement. The risk of lacerations to the head because of in-flight turbulance or forced landings is also genuine. While the gravity of this risk may not be as severe as an eye injury that does not relieve the Employer of its obligation. The Collective Agreement also requires the Employer and the Union to co-operate in the prevention of accidents and in the reasonable promotion of safety. Mr. Murray, the base manager, informed the attendants that the old helmets would be sent out and refurbished because of their age and state of repair. This was not done. Mr. Turner, then operations supervisor for the air ambulance service proposed that a trial periodbe initiated to determine the value of helmets. This was not done. Therefore, this member must conclude that the Employer has again violated the Collective Agreement because of its lack of operation with the Union on these safety-related matters. Accordingly this member would have upheld the grievances and directed the Employer to co-operate with the Union in developing a comprehensive and' integrated approach to minimizing the various risks through an appropriate head protection system. Respectfully submitted, Stan Urbain Union Member 2