December 15, 2021
20.4.253
Background
The grievor had been assigned training and work over the past few years which required the use of an aviation headset. They had been using their personal headset for this work, and due to wear and tear, the grievor requested the ear seals be replaced by the Department. In addition, the grievor requested that the Department purchase them an active noise cancellation (ANC) headset in order to complete flight tests. The grievor argued that ANC headsets are identified via the Department’s Hazard Identification and Prevention Program (HIPP) Task Hazard Analysis (THA). The grievor maintained that personal protective equipment (PPE), such as ANC headsets, are required for conducting flight tests, and should be provided by the Department as needed. As the working environment assigned exceeds 84 dBA and that the nature of the work prohibits the Employer from reducing the sound exposure, the Employer is required to comply with section 7.7(l) of the Canadian Occupational Health and Safety Regulations (COHSR), which specifies that an Employer shall provide every employee, where exposure to sound is likely to exceed 84 dBA, with hearing protection.
The Employer denied the request on March 21, 2019, stating that that they do not issue avionic headsets, noting that neither the Department’s Civil Aviation Directorate nor their Occupational Health and Safety Program, require the Employer to purchase ANC headsets. The Employer further noted that ANC aviation headsets are not deemed PPE by the Department, and there are no provisions or requirements to purchase them and therefore no funded resources to do so.
Grievance
The grievor is grieving the Employer’s denial of their request for appropriate PPE for the assigned task. In doing so, the Employer has failed to meet the Canadian OHS Regulations and the NJC PPE Directive.
Bargaining Agent Presentation
The Bargaining Agent representative is of the opinion that the grievor was not treated within the intent of the OHS Directive. The grievor’s duties are to evaluate the skills of aircraft pilot candidates for the purpose of licensing, and require extensive communication between the grievor and the candidate, as well as the grievor and air traffic control while the aircraft is flown through a series of maneuvers that could quickly become unsafe. These duties expose them to noise levels greater than 87 dBA, which exceed the maximum permitted levels of sound in the Directive, the Canadian Occupational Health and Safety Regulations (COHSR) and the Aviation Occupational Health and Safety Regulations (AOHSR). Furthermore, the Canada Labour Code and its regulations require the employer to provide its employees with hearing protection in these circumstances. The Department has identified, through its HIPP that hearing protection is required to mitigate the high levels of noise when conducting a flight test. In this case, the hearing protection is in the form of an aviation headset. The industry standard aviation headset includes ANR which employs a set of microphones and speakers to offset environmental noise and significantly reduce sound levels beyond traditional, passive hearing protection. The Department provides ANR headsets to employees of other regions.
The purpose of the required headset in question is twofold – hearing protection as required by section 2.7(1) of the AOHSR and facilitating clear communications with the candidate and air traffic control to ensure the aircraft is operated safely. The grievor was using their personnel headset for these assigned duties until it became worn out and unusable. The grievor then requested the Employer to provide them with an industry standard noise cancelling aviation headset to continue completing their assigned tasks, however, this request was denied by the Employer. The representative argued that the Department does not consider noise-cancelling headsets personal protective equipment even though the Second Level Response to the grievor stated the THA for Flight Tests generated by the Department identifies noise as a hazard and requires hearing protection as mitigation.
The Department has offered, in both the first and second level grievance responses, the grievor the use a noise-cancelling headset owned and maintained by the Department or replacement parts (ear seals) so that the grievor can maintain their personal headset. The representative argued that the responses do not address the problem, the Department does not have loaner headsets and expecting the grievor to provide and maintain their own personal protective equipment is unreasonable.
It was noted that not all work locations have extra headsets to lend to inspectors of the Department for the employees to complete their work. Even if they did, the type of headset is incompatible with the systems on-board light general aviation aircraft (the plug to interface with the aircraft systems is different). The grievor’s office is over an hour’s distance from headquarters. Even if headquarters had headsets to lend out, its unreasonable as well as inefficient and environmentally unfriendly to expect the grievor to drive from their office to headquarters then back to the flight test location, a trip that will take at least two hours then complete a four-hour flight test and repeat the drive to headquarters to return the headset. Providing the grievor with spare parts to maintain their personal equipment so that they can complete tasks assigned by the Employer seems unreasonable as well. If the Employer assigns tasks involving hazardous environments, the Employer is required to provide the equipment to complete the task safely.
The representative requested that the grievance be upheld, and that the Department provide an active noise reduction aviation headset configured for use in fixed-wing, general aviation aircraft to the grievor that effectively mitigates the noise hazards in the aircraft environment.
Departmental Presentation
The Employer representative is of the opinion that the grievor was treated within the intent of the Directive. It was noted that while Part 13 of the Directive is specific in relation to the general responsibilities of Departments, it does not determine the manner in which the employer must meet this obligation. The representative noted that the Department recognized the need for hearing protection for all Employees who may be exposed to a noise level of 84 dBA or more for a period that is likely to endanger hearing, and therefore following a THA regarding hearing protectors, it was determined that a complete hearing conservation program should be instituted. The representative confirmed that the Department currently works within the relevant guides, policies, such as the Hearing Protection Program Guide and Processes, and consults the departmental National Policy Health and Safety Committee and the Standing Advisory Committee on Inspector/Delegated Officer Clothing, Equipment and Professional Attire for guidance. The representative noted that the Department has performed noise exposure assessments, as part of the Department’s HIPP, for all hazard tasks with a noise exposure exceeding 84 dBA and where possible, will implement engineering or administrative controls to reduce noise exposure to acceptable levels, issue hearing protection for all noise-exposed employees, train employees in fit, care and use of hearing protection provided by the Department. The representative also noted that the Department will implement an audiogram surveillance program for employees assigned to occupations that have an inherent element of noise exposure to their health and safety.
In relation to the grievance matter at hand, the representative explained that aviation headsets are only used for the duties performed inside the aircraft as there is a need to be able to communicate with the flight crew. Other forms of hearing protection are worn airside (earmuffs, etc.). While there are some models of earmuffs available in the PPE Catalogue with connections for communication jacks, the specific model the grievor is requesting is not listed. The representative also noted that when performing duties for the Department’s Aircraft Services Directorate (ASD) flying program, aviation headsets are available on site for employees to use. When performing flight check and monitor rides, the third-party aircraft is expected to provide departmental employees with an aviation headset. Additionally, although not required by the Employer, the representative noted that many inspectors use their own personal aviation headsets as most fly outside of work and already have a preferred aviation headset when they join the Department. The representative explained that the grievor has been using their own personal aviation headset to perform the flight related duties of their position. The Department has provided options regarding hearing protection during flights, including an offer to purchase replacement seals for personal aviation headsets (accepted as the option of choice by the employee) and access to the use of headsets maintained by Aircraft Services for duties performed on ASD aircrafts and headsets provided by third party aircrafts when performing duties outside of ASD. While these options do not meet the personal preferences of the grievor, they provide the required safety and protection in accordance with the above noted policies and directives allowing them to perform the duties of their position in a safe manner.
Based on the above, it is the Department’s position that it is meeting its obligation to issue hearing protection for all noise-exposed employees, specifically Inspectors who performed duties related to the flying program and flight check and monitor rides.
Executive Committee Decision
The Executive Committee considered the report of the Occupational Health and Safety (OHS) Committee which concluded the grievor had not been treated within the intent of the Directive. The Executive Committee also noted the OHS Committee’s recommendation that the grievor be provided with fit-tested hearing protection compatible with communication devices, such as an ANC headset. As such, the Executive Committee upheld the grievance.