Article 54 of the work contract and management’s duty to accomodate.

This week, the Sunday e-mail focuses its attention on the question of article 54 of the work contract and management`s “duty to accommodate” injured workers or workers with illnesses including mental illnesses as disability is one of the protected grounds of the Canadian Human Rights Act and no discrimination on this basis is allowed.

This discussion is being held in the context of severe cutbacks in staffing and the combining of job bookings so as to further the capitalist exploitation of the workers at the plant by constantly having fewer workers doing more work.  It is also being held with much intensity since the May 12 shift bid which brought about working conditions that significantly diminished the amount of work that could be carried out by workers with medical restrictions.

Since November 2012, more than 71 positions have been abolished in a period of 8 months throughout the plant.  The dust has not even begun to settle regarding the last shift bid, that rumors are going around again saying that management is considering another staffing realignment for the fall of this year.

Except in the short and long section of transaction mail, only “abled bodies” were allowed to bid for positions that would form the new shift compliments throughout the plant.  This was part and parcel of the new staffing profile.

In the short and long section of transaction mail, a limit on the number of accommodated positions was imposed; that is 5 on day shift, 8 on evening shift and 13 on the night shift, something which severely affected the rights of other workers with disabilities in need of an accommodation.

These positions were assigned to the manual sortation frames.  By the same token, the management reduced the total number of workers sorting mail on all three shifts, eliminated sorting assignments on the day shift and intensified the level of toil both for the sorters and the remaining workers by having them perform all the hard labour.

As part of the corporation`s “new policy”, the movement of the workers with disabilities have been stopped and they can no longer exercise their rights to transfer, to promotion, to bid on shifts of their choice unless the desired position is already compatible with the workers` restrictions.

Obtaining such a position is practically impossible due to the Corporation’s relentlessness in enforcing conditions of hard labour for the workers, thus increasing the level of productivity and profitability for the Corporation.

This discussion also comes about after the Harper dictatorship put an end to the postal dispute by passing legislation in the parliament imposing final selection arbitration which forced the union to accept the lesser of two evils.  This gave rise to the elimination of our sick leave benefits which was replaced by a Short Term Disability Program (STDP).

The new work contract was barely ratified by the membership and was signed on December 21, 2013.  The next day following the May 12 staffing realignment, the Rideau Division of Canada Post issued a letter addressed to all postal employees outlining its “new policy” regarding article 54.

The letter stated that management had been reviewing article 54 since the month of January 2013.  That is just two weeks after the contract was signed.  It also stated that as of May 13, work accommodations would be done differently than in the past.

It stated that management would no longer allow for accommodations “over and above” position establishments at the plant and that the workers who want to request an accommodation would have to undergo a review by the joint union/management committee on article 54.

If no suitable work is available for them, the letter said, they would be sending the workers home on the Short Term Disability Program (STDP) at 70% of their wages including loss of premiums and benefits as the workers would have to exhaust the 7 days of personal leave before they could be eligible for the STDP.

This process also includes a claim review by Great West Life who manages the STDP for Canada Post and another review by Morneau Shepell who manages the workers’ requests for work accommodations.

This corporate arrangement represents a multi-party involvement in determining whether or not a worker will be accommodated as per the work contract and the Canadian Human Rights Act.

The letter by the regional division of Canada Post, which is a higher level of management than the one at the OMPP, also affirmed the corporate position that accommodations would only be made provided the employer`s viability was protected and that the workers contributed as productive individuals to the success of the corporation.  Management also affirmed that it was not obligated by law to create positions for workers with disabilities.

The struggles of the workers for their rights at the place of work has condemned the union/management consultation process which was held in secret and which gave rise to the further engraining of a discriminatory stigma against the workers with disabilities and to the instituting of a division of labour based on hitlerite notions such as abilities versus disabilities and the notion of hard labour.

The union/management consultations on staffing realignment were conducted simultaneously with the review of the work restrictions of all the workers by the article 54 committee.  The new staffing profile was then approved by the National Director of the Union, Mark Avard.

Since then, the workers have been calling for a union leadership that fights for the rights of all and that upholds our founding principle that an injury to one is an injury to all. The Sunday e-mail dated July 14, 2013 has also denounced the union/management consultation process which took place prior to the implementation of the new staffing profile as a process which has created a new fascist corporatist arrangement at the OMPP and one which is viciously being enforced at the plant through the multi-party arrangement on the question of article 54.

What has been the experience of the workers on this question since the May 12 staffing realignment?

Great West Life has been contesting medical diagnosis and not dealing with the workers’ medical information provided by the family physician and has denied claims forcing the workers back into the plant leaving them to fend for themselves in hard labour environments.

Pressures are also being exerted on the workers for them to retire before having worked the required amount of time for them to receive a full pension.  Workers have been even considering taking a term of leave without pay in order to protect their health from further deterioration.

It is not for nothing that after the shift bids were held that management gave every single worker at the plant a request for accommodation form and informed them that the slightest request for lighter work even if it is only for a couple of days would have to be reviewed in accordance with the new arrangement.

At the same time, the management was sending the workers home who could not secure an accommodation as a result of the staffing realignment on the basis that the employer had no more suitable work for them.

Accommodations under article 54 of the work contract by the union/management committee is being carried out in a most arbitrary fashion and the employer uses its discretion to accommodate those they prefer while others are being forced into the Short Term Disability Program pending reviews.

In one case, the employer abolished his day shift altogether through the May 12 staffing realignment.  A petition by the workers in that section was presented to the union and no action was taken.  The man who was on a work reintegration program was bumped from his day shift to night shift causing a regression of his illness.  The man has over 35 years of seniority.  What he enjoyed by right was replaced with the worker having to demand an “accommodation” by the employer.

The implementation of the staffing realignment has seen all the rights of the workers under the work contract such as articles 5, 11, 13, 33, 39, 54, 56 and others violated.  The articles governing the rate of pay and benefits have also been violated and the workers have been made to suffer from job and income insecurity during reviews.  The rights that workers have by dint of being human and by dint of being workers were trumped by monopoly right.

In the case of another worker, the article 54 committee substituted themselves as the trustee of that worker and decided for her what was in her best interest and assigned her a position that she did not want while she had the seniority to stay in her own position that had been previously modified and that was suitable to her work restrictions and to herself. The worker was also excluded from the review process.

During the review of the restrictions of the disabled workers by the union/management committee on article 54, none of the workers were called in to participate in the review. The joint union/management committee acted as though all the workers belonged to them and decided for them where they would be best suited to work at the plant just like a trusteeship arrangement would do.

Those who ended up being accommodated by the employer were made to feel indebted to the employer for having done so and in turn are working harder, well above the call of duty, in order to preserve their accommodations.

The fact that Great West Life is beginning to turn down claims is not surprising.  We had predicted that this would happen during the last strike/lock-out situation as management’s proposal to eliminate our sick leave benefits was for the sole purpose of cutting costs and of ensuring that they were able to obtain the most for the least.

Great West Life is the insurer, the arbiter and the final decision maker.  The workers cannot file even a simple grievance contesting their decision.

A plant wide bid was not a solution to the problems of the workers.  If that had taken place, the workers throughout the plant would have been at each other’s throats, fighting amongst themselves for assignments at a time where management is drastically cutting positions all over the place and displacing surplus workers as floaters inside the plant. This would have kept everyone confined to fighting for their own self-interest.

What was urgently needed at the time of the consultations on the staffing realignment was a union leadership that fights for the rights of all and that can organise the workers as an effective opposition to the monopoly right of Canada Post.

The corporate policies are creating havoc in worker’s lives and wrecking the post office as an indispensable public infrastructure of Canada.  Building the workers’ opposition to what is going on not only at the post office but all over society must become the most important task that a union can do at this time.

All over, the pressures on the workers have been to keep everyone in the “above” hoping that some divine power will yield for them and grant them their wishes.  When down to earth, the workers are being encouraged to fight only for themselves and to place their future in the hands of corporate interests who will grant them things depending on whether one has been good or bad in serving the aims of the corporation for the making of maximum amount of capitalist profit.

For your information

*Great West Life is a leading Canadian insurer.  In Canada, its investment operations manage over $49 billion of assets in the company`s consolidated general funds and over $48 billion of segregated funds.  It operates the Great West Life Center for Mental Health in the Workplace which they say helps employers deal with workplace mental illness issues.

Great West Life is a subsidiary of Great West Life Lifeco Inc. and its companies have $546 billion in assets under administration, and are members of the Power Financial Corporation group of companies.  “A member of the Power Financial Group of companies” is the registered trademark of Power Corporation of Canada.  Great West Life Lifeco Inc. is governed by one of the most powerful family in Quebec that is the Desmarais family.

*Morneau Shepell is the largest company in Canada offering human resources consulting and outsourcing services.  It is the leading provider of Employee and Family Assistance Programs, as well as the largest administrator of pension and benefit plans. Through health and productivity, administrative, and retirement solutions, Morneau Shepell helps clients reduce costs, increase productivity and improve their competitive position.

Established in 1966, Morneau Shepell serves more than 8,000 clients, ranging from small business to some of the largest corporations and associations in North America.

W.F. Morneau is the Honorary Chair and founder of Morneau Shepell.  Amongst many other activities, he was appointed in 1999 as Knight Commander of the Order of St. Gregory the Great by His Holiness Pope John Paul II, and elevated to “with star” in 2012 by Pope Benedict, the highest honor accorded to a catholic layperson and received an Honorary Doctorate from the University of St. Michael’s College, a Roman Catholic college, in 1996.  The Pontifical Institute of Medieval Studies resides within the college.

*The above information on Great West Life and on Morneau Shepell was obtained by visiting their website.

Some notes on Accommodation Law

It is generally recognized that the essence of the “duty to accommodate” is straight-forward to state that both employers and unions in Canada are required to make every reasonable effort, short of undue hardship, to accommodate an employee who comes under a protected ground of discrimination within human rights legislation.

Disability is such a protected ground.  Disability also includes mental illness.  The law requires an employer to determine whether existing positions can be adjusted, adapted or modified for the employee, or whether there are other positions in the workplace that might be suitable for an employee.

The “duty to accommodate” places the onus of proof on the employer to show that it has looked at all reasonable alternatives to accommodate.  The “duty to accommodate” is a fundamental legal obligation in Canada.  It comes from two sources; the applicable human rights legislation and the rulings from the Supreme Court of Canada.

Once the employer has received a request for an accommodation, it must initiate the accommodation search.  The worker is expected to participate in the accommodation process, and cannot refuse a reasonable accommodation offer.

According to the law, collective agreement provisions are to be respected, but they may have to be waived if they unreasonably block a viable accommodation option or if they treat individuals who are protected by human rights legislation differently without a compelling justification.

The “undue hardship” threshold is very high and is an applicable notion to both the employer and the union.  “Undue hardship” considerations are based on Accommodation Law and they are as follows; financial cost which would affect the viability of the Corporation, impact on a collective agreement, problems of employee morale, size of the employer’s operations, safety, interchangeability of the workforce and facilities and the employers have been pushing to have operational requirements of a workplace included as a factor to determine “undue hardship”.

A labour board or human rights tribunal that is applying these factors will balance them with the right of the employee seeking an accommodation to be free from discrimination.

The larger the operation, the more likely it is that it can afford to permit a wider range of accommodations for an employee with a disability.  Canada Post is the fifth largest employer in Canada.  It has organised mail processing activities in such a way that it has given rise to a high rate of injury on duty, the appearance of various illnesses including mental illnesses.

A viable accommodation can override the provisions of the collective agreement, unless the proposed accommodation would significantly interfere with the rights of other employees.  Jurisprudence has stated that, before trumping a collective agreement, other less intrusive accommodations must be investigated first by the employer.

Case law has established that only when no other appropriate accommodation is possible should a proposal that would interfere with collective agreement rights be adopted.  Even then, a proposed accommodation that would cause the loss of another employee’s job (i.e., bumping a senior employee out of a job), or granting super-seniority to an accommodated employee (i.e., red-lettering the worker so that he or she couldn’t be bumped) would amount to “undue hardship” because of the impact upon the job interests of other employees.

Jurisprudence has never allowed super-seniority’ rights to disabled employees as to allow them greater claims to work than more senior employees.  In other words, an employee with a disability must be accorded equal treatment despite her or his condition, not superior treatment because of the condition.

Arbitration awards have stated that a disability does not entitle an employee with an illness or injury to displace an incumbent, despite having greater seniority, unless the collective agreement specifically permits such bumping.  On the issue of whether the seniority provisions of a collective agreement can be overridden so as to give a disabled employee a greater claim to a vacancy than more senior employees, the prevailing view is that accommodation can trump seniority, but only if there are no other, less intrusive, accommodation possibilities available.

Labour law accepts that even in the era of human rights in the workplace, seniority is accepted as a cornerstone of any collective agreement, and cannot be interfered with lightly.  In sum, the “duty to accommodate” does not extend to permitting an employee with a disability to bump an incumbent from her or his position.

However, the “duty to accommodate” could allow a disabled employee to be placed in a vacant position, even though she or he had less seniority, skill and ability than another employee, if that accommodation caused the least amount of interference to the employment rights of other employees.

Like an employer, the union cannot rely upon collective agreement provisions to escape its accommodation responsibilities.  However, also like an employer, a union can refuse a proposed accommodation if the consequences would result in an “undue hardship” to other members of the bargaining unit.

The trust of case law states that the seniority rights in a collective agreement can only be overridden where no other accommodation option, short of undue hardship, is possible.

The Supreme Court of Canada in Renaud wrote that the search for accommodation in the workplace is a multi-party responsibility.  Along with the employer and the union, the individual employee must also actively participate in finding an appropriate accommodation.

The initial burden to accommodate rests with the employer.  It must initiate the effort once a request is made to investigate the accommodation possibilities, and then consult with the employees, and where one is present, the union.

To sum up, an employee seeking an accommodation has three responsibilities: I) to actively co-operate with the employer and the union in investigating accommodation possibilities; 2) where appropriate, to accept to offer reasonable explanations for his or her refusal to accept a proposed accommodation and 3) to accept a reasonable accommodation proposal that meets the employer’s operational requirements and that does not cause him or her “undue hardship” in the circumstances.

*These notes were taken from reading lectures written by Michael Link, professor in labour, human rights and constitutional law at the Faculty of Law, the University of Western Ontario, in London.  He is also an arbitrator.

Article 54 of the work contract — “Work Reintegration Program”

54.01 Duty to Accommodate

The parties recognize that the Corporation, its employees, the Union, and the employee who is permanently-disabled or temporarily disabled must work together to attain the objectives set out in the Canadian Human Rights Act.

(a) Where an employee has become permanently or temporarily disabled, and the need for accommodation is supported by a medical certificate issued by a qualified medical doctor, he or she may submit a written request for accommodation to the Corporation.

(b) In determining appropriate accommodation, the Corporation must first consider measures that allow the employee to remain in his or her position and assignment or in any vacant position or assignment he or she can obtain based on seniority.

(c) The Corporation shall consult the Union on appropriate accommodation. The parties shall make every effort to reach an agreement to that effect. However, the Corporation and the Union recognize that implementation of the accommodation measures cannot be delayed because of a failure to reach an agreement or because the situation requiring immediate action does not allow for consultation to take place and agreement to be reached before the implementation of such measures. Under such circumstances, the Corporation shall take appropriate accommodation measures. The Union reserves the right to file a grievance.

(d) Assignments that are identified, as of January 31, 2007, as rehabilitation assignments are maintained as such unless the parties agree otherwise.

(e) Accommodation shall end as soon as the employee becomes capable of performing all the duties of his or her regular assignment or of an assignment he or she can obtain based on seniority.

(f) The parties may agree to designate and reserve certain assignments for employees requiring accommodation.

(g) Parties at the local level shall make every effort to ensure the proper application of this Article.  All agreements arising from this Article must be approved by the National Director of the Union and by the local management representative.

NOTE:

On the evening of July 22 and throughout the night of July 23, the OMPP management proceeded to the wrecking of 4 out of the 5 work stations which had been assigned to the workers with work restrictions (disabilities) on the day shift in the short and long section of transaction mail by completely dismantling all of the work stations leaving a backlog of mail going as far as June 27, 2013.

The employer is in the process of automating all of the work functions of these stations by introducing a technological change in the workplace.  The employer is doing this without following article 29 of the work contract which governs this question.  It neither notified the Union nor anyone in production of its plans.  On the morning of July 23, both the workers and the first line supervisors stood in disbelief in front of the wreckage.  The workers immediately demanded that the shift manager carry out an investigation.

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This concludes the Sunday e-mail for this week.  The Sunday e-mail will also be taking a break for three weeks due to the summer holidays and will resume its work on Sunday August 25, 2013.  Best wishes to everyone.

In Solidarity,
Danielle Desormeaux
hoffddesormeaux@gmail.com

5 comments

  1. Melody says:

    These things have been going on at Hamilton Mail Processing Plant as of March 15 2013, when 8 people including myself were given a letter 5 min before the completion of shift and told not to come back to work as we were no longer going to be accommodated. 6 of us are still off on the stdp. The stdp will end October 15th. Then what? I do hope that all people across this nation that have been handed this, all lodge complaints with Human Rights Canada. CPC cannot be allowed to do this. We cannot allow them to set precedent.

  2. Norm Dowling says:

    Norm Dowling, CUPW health and safety officer, Prince George BC Mail Processing Plant.

    I will try to keep this short.

    It was our union members who voted on the collective agreement and unfortunately they voted to accept major concessions and now we all have to live with them. Part of the problem with voting on collective agreements is that it is not mandatory. I believe that if voting were mandatory there would have been a continued job action. You must understand that when the two unions were merged there were several smaller LCUC locals where members were put in a position where they had their locals dissolved and then had to drive distances of fifty to seventy kilometers to attend union meetings such as in the Fraser Valley BC situation. Newer members simply do not want to take the time to drive those distances so the solution is to change our constitution to make contract voting mandatory. Fairly simple to achieve. Pass out sealed ballots on the work floor and do a check off person by person. Of course, members would have the right to enclose a blank ballot based on religious grounds but the point is there would then be 100% participation. Now is sort of not the time to reiterate the problems of the collective agreement that was voted on and accepted by the majority.

    In regard to article 54:

    This year is my 35’th year as a letter carrier and I am working at the sorting plant on an accommodation. Of course the Prince George BC area cannot compare with anywhere in Ontario. In 2009 I had an accommodation which was managed by the corporations previous disability management service provider. That experience, which was a nightmare and eventually went as far as the corporation threatening me with termination of employment, after I looked after myself, led to a Federal Ministerial Enquiry by The Honourable Lawrence Cannon and The Honourable Rob Merrifield. A couple of senior corporate executives had to answer some serious questions from serious cabinet ministers.

    In regard to the new disability management service provider. I don’t want to praise them but compared to the previous provider it was a very pleasant experience. There was no harassment. My case manager (a trained doctor from a Middle East Country) had no problem with my refusal to phone contact, he understood medical information and was non confrontational.

    So, yes, under the new collective agreement the accommodation process may be somewhat flawed, it is a joke that the disability management provider has the final say but it was voted on by the majority.

    • cynthia says:

      norm i went to mp about this who told me he was unable to help or interfere on my behalf.who do you suggest i contact?

  3. Keith Ash says:

    Yes, voted on by the majority of those that showed up to vote. Less than 30% I
    believe!!!

  4. cynthia says:

    well this article certainly explains why my national director has a problem with the evidence of my rehab route.i have all the documents stating that it was permanently awarded to me and it had been adjusted to fit my needs. despite this he has shut his eyes and ears to my evidence and instead has tried to beat me down for 7 months.when did our union officials become our employers lackies.i feel like ive been in a 7 month time share presentation. to ignore the facts dont change the facts.my local went from telling me i would be returned to my rehab to outright lies and deception. outright lied and wouldnt let me in my arb telling me i couldnt go in as a grievor because i wouldnt be able to speak or answer questions. held my arb over and again lied and told me arbitrator wanted more time to hear evidence when the fact was it was held over so my local could invite the able bodied person who had just sucessfuly bid on my route to sit through my arbitration unknowing to me. they smoked me.

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