Changes to operations during labour dispute should not affect safety – employer obligations remain the same, says lawyer
The union representing workers at the Southern Railway of British Columbia (SRY) has raised safety concerns after rail yard employees were locked out and managers took over operations.
The lockout of 126 members of the Canadian Union of Public Employees (CUPE) and eight members of the Canadian Office and Professional Employees (COPE) union — effective Jan. 5 — came after employees rejected SRY’s final offer by a margin of 91 per cent. After more than six months of negotiations, the two parties were unable to agree on issues of post-retirement benefits, job security, contracting out and the effects of overtime work on health and safety. Following the lockout, which affected several sites, managers took responsibility for the operation of trains in a service area stretching from Vancouver to Chilliwack.
The locked-out CUPE 7000 members include conductors, engineers, brakemen, trackmen and workers responsible for locomotive maintenance and repair. Management is not as qualified as its own specialized employees, the union said, leading to serious safety concerns during the lockout.
"It’s not as safe as having our guys do the work," said CUPE 7000 president Bill Magri. "Managers, some of them, came up through the ranks so they know the business. They’re trained, they’re certified, but they’re not necessarily current. I know they have taken guys out of the office and given them a crash course on how to be a brakeman and put them to work on the ground… this is causing us concern."
There was an incident in which a train was dragged with the hand brakes on for a significant period of time, according to Magri.
"The wheels were locked up on that car and they were dragging on, oblivious to it," he said. Because SRY is often responsible for the transportation of hazardous goods, maintaining strict safety procedures is of the utmost importance, he said. SRY, however, said reports on its operations during the lockout were significantly exaggerated.
"CUPE has apologized over a false report of a derailment near our New Westminster office which they started through social media," SRY president Frank Butzelaar said in a Jan. 6 release. "No such incident happened. The report was false… This is an unfortunate incident and does not do anything to encourage a climate in which SRY and CUPE can resolve our issues to the mutual benefit of our employees and customers."
About 34 managers became responsible for SRY’s operations in accordance with the company’s service contingency plan, the union said, though that number was in contention as CUPE intended to argue which employees were permitted to work during the lockout, according to Magri.
Employers in B.C. are prohibited from using replacement workers during a legal strike or lockout, according to provincial labour code. SRY can, however, continue to operate during labour disputes using non-bargaining unit personnel at the affected sites. This means SRY is limited to using management personnel who were in place prior to the union’s January 2014 notice to bargain.
While the use of management to maintain operations during the lockout is legal, it is not in the best interest of the company or the public, Magri said.
"They have the labour relations director out there on a train crew. It’s absolutely absurd," he said. "We want to get our guys back to work."
Legal view
Changes to operations during a labour dispute should not affect safety, said Lorna Pawluk, associate counsel at law firm Bernard in Vancouver.
"An employer has an obligation under the workers’ compensation act to maintain the health and safety of workers," Pawluk said. "And worker has a different meaning than employee so they’re not mutually exclusive. Everybody that is an employee is a worker, but the worker category is much broader. It will include people who, for labour relations purposes, are not employees."
Regardless of this distinction, the employer’s obligation to maintain a safe workplace remains the same, she said. This obligation exists despite any fluctuating conditions in a workplace.
"It doesn’t change because the nature of the work is changing or because people who are doing the work changes," Pawluk said. "How they achieve the safety, though, may change somewhat."
In a situation similar to SRY’s — where management personnel were called upon to maintain operations — Pawluk recommended bringing in a team of experts to perform a new hazard assessment.
"I would suspect most employers are not going to do really specialized, difficult, highly skilled work during a (labour dispute)," Pawluk said. "That would just not be technically possible."
Typically, labour disputes such as lockouts and strikes lead to employers limiting their operations, she said.
"So you’re not going to have to train up all of the managers for the health and safety obligations that would exist there but you would have to train them up for the hazards they are facing in the redefined workspace with the redefined duties."
Unless new hazards were introduced by virtue of the labour dispute, additional safety policies or procedures would likely be unnecessary, said Pawluk.
"If, after the hazard assessment is complete, there’s a realization that all of the hazards haven’t changed, then the existing policy should theoretically be enough. You may have to train up some people to do certain things that they wouldn’t do before," she said. "In that case, there would be a requirement to train people to deal with the hazards they’re now facing."
