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