Canadian Safety Reporter

February 2015

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2015 CSR | February 2015 | News Southern Railway lockout causes safety concerns Changes to operations during labour dispute should not affect safety – employer obligations remain the same, says lawyer BY LIZ FOSTER 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 opera- tions. The lockout of 126 members of the Canadian Union of Pub- lic Employees (CUPE) and eight members of the Canadian Of- fice 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 bene- fits, job security, contracting out and the effects of overtime work on health and safety. Following the lockout, which affected sev- eral sites, managers took respon- sibility for the operation of trains in a service area stretching from Vancouver to Chilliwack. The locked-out CUPE 7000 members include conductors, engineers, brakemen, track- men and workers responsible for locomotive maintenance and repair. Management is not as qualified as its own specialized employees, the union said, lead- ing 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. "Man- agers, 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 signifi- cant period of time, according to Magri. "The wheels were locked up on that car and they were drag- ging on, oblivious to it," he said. Because SRY is often responsible for the transportation of hazard- ous goods, maintaining strict safety procedures is of the ut- most importance, he said. SRY, however, said reports on its op- erations 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 so- cial 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 mu- tual benefit of our employees and customers." About 34 managers became responsible for SRY's operations in accordance with the com- pany's service contingency plan, the union said, though that num- ber was in contention as CUPE intended to argue which em- ployees were permitted to work during the lockout, according to Magri. Employers in B.C. are pro- hibited from using replacement workers during a legal strike or lockout, according to provincial labour code. SRY can, however, continue to operate during la- bour disputes using non-bar- gaining 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 rela- tions 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, as- sociate counsel at law firm Ber- nard in Vancouver. "An employer has an obliga- tion under the workers' compen- sation act to maintain the health and safety of workers," Pawluk said. "And worker has a differ- ent meaning than employee so they're not mutually exclusive. Everybody that is an employee is a worker, but the worker catego- ry is much broader. It will include people who, for labour relations purposes, are not employees." Regardless of this distinc- tion, the employer's obligation to maintain a safe workplace re- mains the same, she said. This ob- ligation exists despite any fluctu- ating 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 person- nel were called upon to maintain operations — Pawluk recom- mended bringing in a team of experts to perform a new hazard assessment. "I would suspect most em- ployers are not going to do re- ally specialized, difficult, highly skilled work during a (labour dis- pute)," Pawluk said. "That would just not be technically possible." Typically, labour disputes such as lockouts and strikes lead to employers limiting their opera- tions, 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 re- defined duties." Unless new hazards were in- troduced by virtue of the labour dispute, additional safety policies or procedures would likely be unnecessary, said Pawluk. "If, after the hazard assess- ment is complete, there's a re- alization that all of the hazards haven't changed, then the exist- ing 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." A railroad yard in Surrey, B.C. An employee lockout has the union representing the Southern Railway of British Columbia workers concerned about safety after managers took over operations. Credit: Andy Clark/Reuters

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