Article 33.13 of the Collective Agreement provides us with the right to refuse unsafe work. If a member honestly believes that their safety is at risk, or that the work they are doing may endanger someone else’s safety, they may exercise this right by stating to their supervisor, “I am exercising my right to refuse this work under Article 33.13 of the Collective Agreement”. A supervisor may not issue a direct order to perform unsafe work.
The following is a summary of the requirements of this Article:
- The supervisor and Union Representative must be informed of the refusal without delay.
- A member exercising this right will not suffer any lost wages.
- Neither the worker, nor any other worker, will be permitted to perform the duties giving rise to the complaint until an investigation has been completed.
- As soon as the Corporation is made aware of the complaint it must conduct an investigation.
- The member making the complaint and the Union Representative are entitled to be present during the investigation.
- A member may be temporarily assigned to perform another similar job until such time as the situation is corrected, providing that the reassignment does not violate other provisions of the Collective Agreement.
- A worker may not be disciplined for exercising their right to refuse, unless it can be established that they, for frivolous reasons, sought to dishonestly take advantage of this clause.
A few examples of situations where our members have exercised this right:
- Employees on the 4th floor of the VMPP found out through word of mouth that there was a bomb scare in the building. Management had evacuated the dock and 1st floor but refused to evacuate the 3rd or 4th floor. Employees on the 4th floor used their right to refuse and left the VMPP until the police cleared the building and declared that it was safe.
- PO5s in the Edmonton plant had been complaining about problems with the motorized equipment but their complaints went unanswered. The brakes failed on a forklift and a PO5 went over the dock. He was seriously injured.After this accident the PO5s used their right to refuse dangerous work and refused to drive the motorized equipment. As a result, management brought in a special mechanic to check out all of the motorized equipment.
- After the FSM renovation, management’s set up of the equipment was so congested that an employee used her right to refuse to work there. The FSM was shut down until new equipment was found that eliminated the congestion.
- A Letter Carrier at Station F successfully exercised her right to refuse by calling and reporting to the Control Centre when she was out delivering mail on force-back overtime. She was delivering in a less than desirable neighbourhood, darkness had fallen and the sidewalks and pathways were covered with ice. She honestly believed that continuing would have jeopardized her health and safety.
There are many examples of potential dangers that postal workers face on a daily basis and each individual’s reasonable perception of risk is to be evaluated on its own merits. While Canada Post has at times overreacted with discipline, arbitrators have typically taken a dim view of this. As an example, a few years ago a situation arose at the VPDC when a member was directed to perform work that he honestly believed could cause him injury. He informed his supervisor of his concern with the order and exercised his right to refuse under Article 33.13. The supervisor took issue with his refusal and suspended him from duty. Subsequently his case was taken to arbitration and he was reimbursed for the lost wages that arose from the emergency suspension that he was given.
Arbitrator McPhillips stated in his decision: “…the right to refuse unsafe work is a critical one and Article 33.13 of this Collective Agreement strongly supports that proposition. It is incumbent upon a supervisor to ensure that there are absolutely no concerns before insisting an employee perform the work.”
Arbitrators have consistently found that there is a heavy responsibility placed upon the employer when it comes to managing a situation where a member has exercised their right to refuse. Arbitrator Outhouse established that “… employees are not to be constrained in asserting their rights under Article 33.13, provided they have some reason to believe their health, safety or physical well-being is endangered and they act bona fide [honestly]… where the employee had some reason to apprehend danger to his health, safety or physical well-being, then the onus is on the Employer to adduce positive evidence of the grievor’s improper motivation.” (Outhouse, Paschal 1984).
Canada Post has upon a number of other occasions failed to properly investigate and act upon health and safety complaints. It is imperative that we be aware of our rights and look to protect each other from potential harm. Both the Canada Labour Code and our Collective Agreement provide us with protection from hazardous conditions that may endanger our ability to enjoy a healthy and safe workplace.
Please familiarize yourself with your rights and contact a shop steward or Local Joint H&S committee representative if you have any questions or concerns. Lists of shop stewards can be found on the union bulletin boards and Local Joint H&S committee representative names are required to be posted on the H&S bulletin boards. These bulletin boards are located in all work locations. If you are unable to locate a representative, please contact the Union Hall.
In Solidarity,
Kim Evans
President
ck/CUPE-3338