OPSEU Participation on Joint Health and Safety Committees in the Ontario Public Service
Below is a summary of a recent decision by the Ontario Labour Relations Board (OLRB) concerning OPSEU’s participation on Joint Health and Safety Committees (JHSC) with AMAPCEO members.
Following the decision are a number of Questions and Answers to assist your local members participate on your workplace JHSC.
Decision by Ontario Labour Relations Board concerning OPSEU’s participation on a Joint Health and Safety Committee with AMAPCEO members
OPSEU’s appeal regarding the participation of AMAPCEO members on Local Joint Health & Safety Committees (JHSC) in OPS workplaces was dismissed by the Ontario Labour Relations Board on Friday, September 24, 2004. The Labour Board issued its written decision on the matter January 6, 2005.
This appeal was brought forward by Evelyn Anger (L.154). The appeal was based on OPSEU’s policy not to participate on JHSCs where AMAPCEO members sit as worker representatives.
The Labour Board dismissed OPSEU’s application without hearing evidence. The decision indicated that there is no legal basis in the Occupational Health and Safety Act for OPSEU’s claim that it should either appoint all the worker representatives on a JHSC, or in the alternative, have its own JHSC
with no AMAPCEO members.
Why did OPSEU appeal this issue to the Ontario Labour Relations Board?
OPSEU established its policy by a decision of a MERC all-chairs and MERC Health & Safety chairs meeting in August, 1995. The policy was re-affirmed by a motion of the OPSEU Board, December 4, 2003.
OPSEU adopted the policy of non-participation on JHSCs where AMAPCEO members sat as worker representatives because OPSEU views AMAPCEO as an association representing management interests and not as a trade union that supports the rights of workers to a safe and healthy working environment. Although
the health and safety system is supposed to be non-adversarial and based on the principal of employers and employees working cooperatively to improve health and safety, in reality health and safety committees are often adversarial in nature. It was OPSEU’s belief that on controversial issues, AMAPCEO would always side with management and
consequently the ability of JHSCs with AMAPCEO members to make substantive improvements to worker health and safety conditions would be limited.
What does this decision by the OLRB mean to my Local JHSC?
The effect of this decision depends on how your Local has been addressing health and safety problems since OPSEU first took its position. The following are short answers based on a number of different scenarios:
If your worksite has a JHSC with membership drawn only from the employer and OPSEU:The decision may have no effect. It may be that there are only a few AMAPCEO members (or none) at your worksite and the employer and OPSEU are satisfied with the current structure. In that case, until the employer or
AMAPCEO start to push for a change, the JHSC should continue as before.
If your worksite has a JHSC with membership from OPSEU, AMAPCEO and the employer: If your JHSC has a Terms of Reference and the number of OPSEU and AMAPCEO representatives on the JHSC is related to the total numbers of OPSEU and AMAPCEO workers in the workplace, the decision may have no effect. If
OPSEU members believe that the current structure is not harming the ability of the JHSC to successfully address health and safety problems, there is nothing to change.
However, if your JHSC has the same number of representatives from both unions and there are two or three times as many OPSEU members as AMAPCEO members in the workplace, it would be advisable to attempt to renegotiate the Committee’s Terms of Reference to establish that union representation on the
Committee should be related to the numbers of members in the workplace. For example, if there are 200 OPSEU members in the workplace and 20 AMAPCEO, it would make sense to have one AMAPCEO and two or three (preferably three) OPSEU members.
Be aware that the Occupational Health and Safety Act gives no direction on the matter of proportional representation on JHSCs. And althought the Labour Board decision commented on this issue, it offered no specific direction on how to determine how many representatives each union can place on a JHSC.
If your worksite has a JHSC with membership only from AMAPCEO and the employer because OPSEU has declined to participate in the past: The decision by the OLRB indicates that we have no legal basis on which to refuse to participate on Committees or to demand our own Committee. OPSEU’s advice
is that the Local union executive approach the employer to indicate their willingness to select OPSEU representatives to participate on the JHSC.
If your worksite has a JHSC with AMAPCEO members representing management and OPSEU members representing workers: This is a rare situation, but it does exist. As long as AMAPCEO members continue to formally be considered as management representatives, this is acceptable.
If my Local is about to get involved in the JHSC, what are the first steps?
First, find out if the JHSC has a Terms of Reference that sets out the number of OPSEU members on the Committee; then select the OPSEU representatives to occupy those positions. Next, you will need to notify the employer of OPSEU’s intention to participate on the JHSC.
What should be in the JHSC Terms of Reference agreement?
(This document does not set out all aspects of a Terms of Reference agreement. Please see OPSEU’s booklet, “A Worker’s Guide to the Occupational Health and Safety Act,” page 15, found on the Health and Safety page of OPSEU’s website for more information about Terms of Reference.)
For the purposes of sitting on JHSCs with AMAPCEO representatives, OPSEU should try to negotiate the following terms into an agreement:
· Representation from the two unions on the JHSC will be representative of the total members of each union in the workplace;
· One certified worker member of the JHSC will always be an OPSEU member who will receive training through the Workers Health and Safety Centre;
· An OPSEU member of the JHSC will investigate critical injuries and fatalities (OHSA s. 9 (31)) of OPSEU members;
· An OPSEU member of the JHSC will participate in work refusal investigations (OHSA s. 43 (4) and (12)) and complaints to the Ministry of Labour of OPSEU members in the workplace.
Where can I get more information and help with negotiating a JHSC Terms of Reference agreement?
See OPSEU’s booklet, “A Worker’s Guide to the Occupational Health and Safety Act” on the OPSEU website ( www.opseu.org/hands/h&sindex.htm ). The booklet offers useful, easy to understand advice on health and safety issues and sets
out the basic components of a Terms of Reference document on page 15.
Call OPSEU Head Office and ask to speak with one of OPSEU’s Health and Safety Officers.
Where can I get help if our local is unsuccessful in negotiating an acceptable Terms of Reference agreement or if the JHSC just isn’t working because the employer is uncooperative?
Call OPSEU Head Office and ask to speak with one of OPSEU’s Health and Safety Officers.
Call your closest Ministry of Labour office and make a complaint that your employer refuses to cooperate with and/or to assist JHSC to perform its legal functions. Insist that the Ministry of Labour send an inspector to investigate the situation. Follow the phone call with a fax or email to the
person at the Ministry to whom you spoke confirming your conversation and your expectation that they will be coming to the workplace to investigate.
How does the local union select representatives to the JHSC?
The Occupational Health & Safety Act doesn’t state specifically how the union is to select representatives to the JHSC. It simply says that if there is a trade union, the union “shall select” the representatives (OHSA s.9(8)). OPSEU’s own health and safety policies advise that OPSEU representatives
on JHSCs are to be appointed by the Local Executive Committee (LEC). Some Locals run elections to the JHSC; however, if members are elected rather than appointed by the LEC, there is a danger that the OPSEU JHSC representatives will not be union activists and will not understand that they are accountable to the LEC.
For further information, please contact the Health & Safety Unit at OPSEU Head Office.
