ee ee eee ee ee ee ° Former B.C. Labour Relations Board Chairman Stan Lanyon (right) gave a presentation on the legal ramifications of the duty to accommodate disabled workers. Return to work Continued from page six He went over some efforts of past years, including the “light duty” pro- grams that Williams Lake Local 1-425 introduced ten years ago. The local union’s early efforts to negotiate, with employers, lists of jobs that disabled people could perform, have largely faded away with the exception of one operation. In those early efforts, the union took away rights of seniority to the jobs set aside for the disabled except for the situation where a senior per- son would be laid off due to the short- age of work. However if the senior person could bump anywhere else in the operation without effecting the position for the disabled, that’s what happened. A couple of pilot projects in the B.C. north between the I.W.A. and the Northern Interior Forest Industry Benefits Plan in 1991 and 1992 to de- velop a “hands-on” disability manage- ment system for the long-term dis- abled eventually failed as well, due to various factors including the lack of a sustained commitment on behalf of committees after some of the pro- grams’ expectations were not met. Arcand said that currently, there are various return-to-work programs in such places as Weyerhaeuser OK Falls (Local 1-423), MacMillan Bloedel Somass and Alberni Pacific divisions (Local 1-85), and Canfor Woss divi- sion (Local 1-71). In the B.C. northern interior, the union-industry safety and health re- search plan, is looking at a return-to- work program that involves two ma- jor elements, said Arcand. The first is a short-term disability program which would pay full wages and top up short-term wage losses. The other is a plan that would pay the first 30 days of disability at full wages and then modify the terms of the con- tract concerning weekly indemnity payments. The second option being consid- ered would begin at the onset of the disability by full disclosure of med- ical documentation. The employee would be given the option of continu- ing the regular program or going into the full disclosure system with the employer, I.W.A. and the plant com- mittee, which would provide full wages and the ability to negotiate a return-to-work process, said Brother Arcand. The pilot projects are about to start up and, unfortunately, major players on the industry side in the northern B.C. interior - namely Weldwood, Canfor and Northwood, are not entire- ly supportive, he said. _ NATIONAL UNION POLICY ON THE WAY Brother Arcand informed the con- ference delegates about some of the details of the upcoming I.W.A. policy on the duty to accommodate. That policy has been worked on by Arcand, National Service Representative Tom Lowe, Local 217’s Safety Director Jim Parker, Local 1-71’s Safety Directory Bob Patterson, and Local 1-424 Safety Director Gerry Smith. The policy should include some of the following points. 1. Local unions should enter into agreements with their employers with regards to temporary alternate em- ployment. 2. There must be clear and com- plete job descriptions written indicat- ing physical requirements of those jobs. 3. Duty to accommodate jobs must be meaningful and productive. 4. Job descriptions must be provid- ed to workers and their physicians. Temporary alternate employment should not be approved without the physicians’ approvals. 5. The program shall be applicable to occupational and non-occupational injuries. 6. The alternate employment pro- gram should be for a specific period of time. It should not be changed or modified except with the agreement of the worker, physician, union and company. 7. Temporary alternate employment may be extended by agreement of the parties. 8. The program must ensure WCB claims are filed in cases of occupa- tional injuries or illness and weekly indemnity claims are filed in cases of non-occupational injuries or illnesses. 9. Employers shall be responsible for medical costs arising out of the al- ternative employment program. Brother Arcand said that following the National Safety Conference in Saskatoon, three elements were added to the policy that is being writ- ten. These were added by workshop delegates. There needs to be long-term alter- nate employment strategies put into place. There also needs to be annual reviews of both short and long term alternate jobs. The workshop delegates added that there should be monitoring of the pro- grams by specially trained in-opera- tion committees. LEGAL PRINCIPLES ADDRESSED At the conference, ex-Labour Rela- tions Board Chairman Stan Lanyon was on hand to address the general le- gal principles surrounding the duty to Sea, e said that the Supreme Court of Canada has developed a legal concept that to treat people equally, some- times they have to be treated differ- ently. In other words, the disabled have to be given different treatment to have some kind of equal opportunity. Mr. Lanyon said that the courts will tule discrimination against those who do not accommodate the disabled un- less there is a “bona fide occupational Tequirement (or qualification).” An ex- ample of that is a job that requires fine motor skills. If a disabled person does not have those skills, then there is no discrimination present. He said that the courts will strike down a “bone fide occupational re- quirement” if there arise alternative ways of handling the situation by adapting the job to the disabled per- son. The Supreme Court of Canada has also ruled that there must be duty to accommodate unless there is “undue hardship” on the parties involved. That can include financial costs, dis- ruption of the collective agreement, morale of employees, facilitating or interchangability of workforce, and size of the operation. Mr. Lanyon handed out an appendix from the Canadian Human Rights Commission which addresses the du- ties of employers, union and employ- ees. He pointed out that unions have a duty to accommodate in establishing practices and procedures. “You do that through the collective agreement,” he said. “Anything that arises out of the collective agreement, you are party to.” He said that, where the employer has taken certain accommodating measures, the union must cooperate. If it doesn’t it can be held jointly li- able. “It’s not unusual where the union has resisted or not cooperated and it Sets ‘dinged’ (fined) and shares the li- ability with the employer financially.” Mr. Lanyon also used the Canadian Labour Congress’ Union Intervention Guide which spells out useful proce- dures. It says that the union must clearly assess the members’ needs and that there is an obligation to evaluate the consequences of accommodation on other members. “You don’t simply pass on the dis- crimination...” said Lanyon. “You don’t say - ‘here’s the adverse affect on this person and we're going to transfer it all to the membership.” The CLC guide mentions that it is the union’s responsibility to propose measures to accommodate and not leave it up to the employer. The Supreme Court of Canada has said that the duty to accommodate is a multi-party responsibility - that of the employee, the companies and unions together. If the employer does not initiate the process, then the union must initiate negotiations with them. If there is no agreement, then the union can grieve the employer’s lack of action. Most of all, Mr. Lanyon says that duty to accommodate programs must be based on common sense and com- passion. “The trade union movement has al- ways been able to incorporate these two things...(as part) of its basis ten- ants,” he said. e Poll Analyst Leslie Turnbull (left) spoke at the conference. To her left is Bill Tieleman, Communications Director with the B.C. Federation of Labour, who also gave a presentation. Membership’s views heard in pre-election polling by Kim Pollock Director, Environment and Land-use Department Wood workers in British Columbia support the province’s new Forest Practices Code. But they support worker safety even more. And they are very concerned about job security, job creation and econom- ic conditions in their communities. These were among the key findings of a recent survey of union members. The study probed I.W.A. CANADA members’ views on a wide range of forest industry, public policy and union issues. It was jointly commis- sioned by National Office and the B.C. Federation of Labour and done by the Vancouver office of Winnipeg-based Viewpoints Research. In all, some 700 1.W.A. members were randomly se- lected for the survey, balanced region- ally between Vancouver Island, Lower Mainland and the Interior. FOREST POLICY ISSUES A major finding was that 70 percent of those surveyed agree that the B.C. Forest Practices Code has improved the way the province's forests are managed and that the Code will bene- fit woodworkers and their communi- ties. About three-quarters of respon- dents agreed that the province’s poli- cy of harvest reductions aimed at sus- tainable cut levels will also benefit woodworkers and their communities. But fully 76 percent agreed that “the safety of workers on the job is more important to me and my family than environmental protection.” “If members have to choose be- tween a safe work environment and practices which help sustain the envi- ronment, their first concern is health and safety,” Viewpoints Analyst Leslie Turnbull told the recent I.W.A. Offi- cers and Staff Conference. In addition, workers gave I.W.A. CANADA a good rating on health and safety: 63 percent said the union is do- ing a good or excellent job at “fighting for improved health and safety on the job.” Those surveyed were more likely to say the union is doing a good or ex- cellent job in the field of safety than in any other area. Continued on page fifteen SS LUMBERWORKER/NOVEMBER 1996/7