OCHU

Action Plan Component on Working From Home

(Presentation by Mark Wright)
Context
Technology is driving the pressure for homework.
Employers see flexible staffing and cost savings through reduced overhead.
Employees like working from home: no commuting, parking costs etc.
Gender is a factor in home-work, for example, women can be home for their children for lunch and have flexibility in their work hours.
Other employees resent it: they can’t work from home because of the nature of their job.
Arrangements slowly erode the power of the bargaining unit.
There is a danger of exploitation of home-workers by moving to piece work ( eg being forced to take internet downtime as vacation ), isolation from co-workers and the union, and dependency on relationship with supervisor.
As a result of the home-workers’ isolation from the union and dependent relationship with the supervisor, there is little enforcement of the Employment Standards Act or their collective agreement provisions in a complaint based system.
The law
There is not a lot of jurisprudence on this area. There is a British Columbia Court of Appeals decision which directed that an employer cannot require a worker to work from home unilaterally and must negotiate such changes with the bargaining agent.
This presents a strategic opportunity for the union. Employers want homework, so we have an opportunity to add to the rights of employees in the collective agreement: reasonable expectation of privacy of communication by the union over the employer’s email system, right to have regular meetings with homework employees at workplace during working hours.
If union refuses to bargain on this question the hospital might contract out through attrition.
Privacy and confidentiality
The employer wants to monitor hours of work, breaks and productivity. The privacy rights that employees working from home enjoy are violated by monitoring.
There is a risk that hospital patient records could be viewed inadvertently by a family member at home. Can the employer inspect the home office to ensure the integrity of data? Do they have to give the employee/union notice? There are many issues like these which should be addressed in a letter of understanding or collective agreement provisions.
Policing the collective agreement
Areas of the collective agreement that are vulnerable to being violated through working from home arrangements include: hours of work, breaks, premium pay and overtime opportunities.
Employees working from home are isolated from co-workers and from the union by the nature of their work location. The worker may fear losing their at home working status.
Supervisors may respond to employee requests for time off, etc. by entering into agreements with the worker that violate the collective agreement.
WSIB
To qualify an injury must occur at “ workplace environ controlled by the employer “. Problems: if have flexible hours of work arrangement may be difficult to establish injury happened when you were working.
Other problems: dual purpose: if doing 2 things at once Board may determine you were not working.
Modified work: if working from home there may be problems.
This is an area which needs much further investigation and work.
Violence in the workplace
Employer has an obligation to provide a work environment free of violence, harassment and bullying under new legislation.
The employer is required to do a risk assessment and to share that risk assessment with the union.
If the workplace is the home and the worker is subject to a violent domestic relationship, Would homework assignment be revoked or would the employer be obligated to ensure that you are you safe at home?
Bargaining
Working from home should be regulated in the central collective agreement.
The central agreement provisions should include:
- The criteria to determine which employees are eligible and how they are selected.
- The terms and conditions and duration of all homework agreements should be regulated. There needs to be a provision that the assignment is voluntary and cancellable.
- Safeguards to protect the employee’s job status and job security.
- Provisions that clearly outline who pays for supplies and equipment and other costs ( for example the employer’s share of electricity, internet, home insurance etc. ).
- The union’s right to communicate with home workers using the employer’s internal internet communication system confidentially
- The right of the union to hold regular meetings of home workers at the workplace during working hours to get feedback on how the collective agreement is operating with respect to home work positions.
- The provision to the union of a list of all employees and where they are working.
- The right of the occupational health and safety representatives to inspect the home workplace
- Measures to protect employee privacy
- A requirement that employees working from home work at the hospital for one week in 5
- Employees whose records have been cleared should not be prevented from applying and being the successful applicant for an opportunity to work from home

Action Plan Component: Use and misuse of computers

(Presentation by Ethan Poskanzer)
Context
New technologies
Technologies can be both for personal and business use. There is a potential for monitoring and invasion of privacy.
When an employer provides a laptop computer: people assume it is their’s and that they can use it for their personal use.
Employers have policies on computer use. Policies generally provide that the employer can monitor, can surveil, and if employee uses the computer for anything that the employer objects to, the employee is liable to discipline.
The employer can surveil every website visited and every email ever seen by the employee.
New technologies have Global Positioning Systems capabilities and can track your movements, especially if you are mobile.
Right to privacy
Can an employer search locker? Sometimes, generally no. Must have reasonable grounds.
Can employer engage in video surveillance? Sometimes without employee knowledge. Employer must have a real problem before engaging in this. For example, a problem with theft.
Arbitrators have been pretty good on privacy except concerning computers. Arbitrators and the courts have upheld the employer’s right to monitor communications over employer-owned equipment. They find that an employer generally has a right to protect their business interest.
Supreme Court Decision
Morelli decision: employee had accessed an adult website and the police had seized his personal computer without a warrant: personal computer contains among the most personal info. Same should obtain for computers issued by workplace with an implicit or explicit understanding that it can be used for personal use.
School Bd. Case: employee had computer issued by school board. Okay to use for personal use. Teacher had hidden file with student’s photo with no clothes. Teacher charged with possession of child pornography. Called this an illegal search. School bd: it’s our computer and our information. Police: Schoolboard owned computer and handed it over to us. Judge agreed with the position taken by the schoolboard and police, and the employee was jailed.
Must be a reasonable expectation of privacy. Judge: there is no reasonable expectation of privacy re a workplace computer.
Arbitration decisions, Joe Weiller: There is not the same expectation of privacy for people using the email system as in a posted letter.
Problems
Blurring of work and private life.
If an employee uses the employer’s phone on break they are entitled to privacy. Same rules don’t apply to technological communication.
Use of personal email on employer system, will depend on the employer’s policy. In last analysis: Unions have to bargain protections or tell employees to use their own devices.
Criticism on the Internet.
Extent to which it goes viral will affect the issue of discipline.
Union officers have some protections under OLRA
Use of employer communication system to speak with their members
Recent case ( 2009 ) decision CEP/Globe and Mail: grieved interference in the administration of a trade union to be prevented from communicating via employer internet system
Whittaker, was the arbitrator: employees don’t have the right to use the employer email system. Have other ways to communicate. Union has a right to access to the employee’s email addresses. Would likely be obliged to provide email addresses if they have them, as they are obliged to provide telephone #s and addresses.
Can union officials be disciplined for communicating with employees during work time.? If it is an existing practice, the Union may have a case that it has a privilege that must be maintained until the employer can bargain it away.
Bargaining
Bargaining protections into the collective agreement is the most effective course of action
- A zone of privacy: if employees are using employer devices for private purposes, buy their own or bargain protection in terms of employer right to surveil. Can’t surveil without good grounds.
- Bargain absolute protection re personal emails and communications
- Bargain access to the communications system of the employer (internal internet system ). Employer will review and censor the unions communications, same problem with bulletin boards
- Bargain access to employees’ email addresses

Mandatory Testing

(Presentation by Mike Tracy)

In2004 Human Resources at St Joseph’s decided to bring in new program, purchased from a Florida company. 2001 the hospital merged with a psychiatric hospital, most difficult wage harmonization was with the clerical group, 84 different classifications. Job evaluation took place for pay equity. Union wanted unit communication clerks (“UCCs”) to come under one umbrella. Rest of clerical workers became administrative support levels 1 -13, everyone got wage increases.
Employer did not discuss new testing process with Union. Previous skills and experience no longer counted. Employees had to take the tests prior to posting into different positions.
Testing for clerical keyboarding and software skills – excel, typing, medical terminology etc. Union filed a policy grievance in September 2004, and then started filing personal grievances in total, 20, mostly part-time employees looking for full-time positions. Clerical employees were afraid to apply for jobs, because everyone was failing the test.
One UCC had her position eliminated – notice of layoff – employer would not allow her to bump until she had taken the test.
Minutes of Settlement (mediated settlement) six years later:
Clerical testing will no longer be applied in 9.08 – Notice of Layoff; 9.09- Layoff and Recall; 9.14- Technological Change; and15.08 – Temporary Transfer. Everyone now gets same test, and under 9.05 job posting provisions, test cannot be used once an employee is in a UCC position (for lateral moves).
Hospital to develop a standardized job description for UCC positions and ADC positions.
Employees who hold a certificate in medical terminology no longer required to take the test.
OCHU will circulate the Minutes of Settlement.

Action Plan Component: Violence and Harassment in the Workplace – Bill 168

(Presentation by Ethan Poskanzer)
The Context
Legislation is a result of Ministry of Labour not responding adequately to workplace violence in the past. Previous legislation probably did give employees the right to refuse in violent situations under the Occupational Health and Safety Act, but with the passage of Bill 168 it is now clear.
Harassment is also now comprehended as a workplace hazard. Previously Ontario Human Rights Code recognized sexual harassment, and other harassments related to a prohibited ground. Bill 168 now recognizes any form of harassment under the Occupational Health and Safety Act.
The Law
Comes into effect on June 15, 2010
Definition of Workplace Violence:
Entails ‘physical force’ in a workplace, or an attempt of physical force, or a threat of physical force.
Definition of Workplace Harassment
Is much broader – engaging in a ‘course of vexatious conduct’. Under Ontario Human Rights Code , if a single incident is sufficiently serious that counts rather than a course.
Employers required to develop ‘policies’, after ‘assessing’ the workplace.
The Role of the Union
It is important for the Union to be involved in the assessment of the work environment.
Employer has to develop a ‘program’ – again Union needs to involved in this, eg. buddy systems, buzzers, etc.
Policies have to include investigation procedures, although Unions have to make it clear to the employer that the results of the investigation procedure have to be subject to the collective agreement grievance and arbitration provisions.
Union has to make a policy decision on extent to which it wants to be involved in the investigations procedure.
Union has to hone procedures to deal with member-to-member complaints. Each member should have a separate representative from the Union, and the Union is entitled to make up its mind on who the harasser is, based on the evidence, although some Unions choose not to take a position.
There is nothing in the Act that requires the Employer to consult with the Union on the policy, but the Union should insist that the policies are vetted through the Health and Safety Committees. If the policy developed is inadequate, the Union can complain to a Health and Safety Inspector, and raise political hay.
The domestic violence provision – where involves two spouses in the same workplace, and involves physical injury. Lot of information is available on the web. OCHU has the material.
Section 27 of the Act – the general duty of the employer to take every precaution reasonable in the circumstances: to prevent workplace violence. If the employer’s policy is inadequate, cite this section of the Act.
Bill 168 now makes it absolutely clear that the right to refuse now applies in violent situations, where reasonable grounds exist. There are some exceptions, where circumstances are inherent in the work – difficult concepts to apply. Even where the exception applies, the employer still has to exercise practices and procedures to deal effectively with those hazards.
Role of Union should be put on the bargaining table, and collective agreement should require the employer to comply with the Occupational Health and Safety Act.

Action Plan Component: Major Problems Facing Office and Clerical Workers

(Breakout Groups)
Major Problems:

Group 4:
Tech change job loss – voice recognition
Workload
Space Loss
Privacy
Health and Safety
Job Uncertainty
Disrespect
No voice in major changes
Isolation

Group 1:
Many of the same issues as group 4…
General disrespect and lack of recognition of clerical staff
Inexperienced leadership and inaccessibility to managers
Workloads
Lack of communication
French language issues

Group 2:
Workload
Automation – self registration
Not replacing staff
Harassment from physicians, management etc.
Ergonomics needs to be done
Lack of money
Stress
Communication
Lack of Education
Orientation on downloaded work
Ventilation
Sharing of workspace
Time off denied

Group 3:
Workload
Isolation
Centralization of bookings – protection of jobs
Paperless
Clerical issues not at the forefront
Inflated qualifications – mandatory testing
Bilingualism

Group 5:
Workload and added responsibilities
Managers don’t know how to manage
Recognition as member of team
Ergonomics of workstations
Training in tech changes
Isolation of the homeworker
Lack of opportunities for advancement
Stress levels

What should OCHU/CUPE do?:

Group 4:
Stronger language on contracting-out
Clerical education seminars
Clerical working group through OCHU
Central language on working at home
Template for ‘Working at Home’ Agreement
2nd Clerical Conference
Update the website on clerical issues

Group 1:
Appropriate representation of clerical on local bargaining teams
Accurate job descriptions issues around qualifications and seniority
More education for clerical staff, on representation, grievances , dealing with management
Campaign to raise the profile of clerical staff as part of the hospital team – more emphasis and exposure
More frequent clerical conference
Further education on harassment and violence in the workplace

Group 2:
Clerical conferences
Education at the local level
Video teleconferences
Website information
Recognition – pins, lunch bags for Clerical Day
Communication and keeping in contact with our allies (BC)
Email list of those attending the conference
Area clerical committee

Group 3:
Create clerical action network
More communication
When is next clerical conference, pass resolution
Representation at locals
More resources
Education clerical staff on need for union, especially new employees
Clerical newsletter

Group 5:
Look at all our job descriptions and forward to Research
Ongoing paid education
Internal working group to address concerns
Use website to share clerical information
Designate Clerical Day and promote/celebrate ourselves
Workload form educational

Future Bargaining Issues:

Group 4:
Central language on expenses incurred while working at home
Centralized wages where possible
No mandatory testing internally
Strong layoff and retraining language – more than 6 months
H&S language for front-line workers
Titles to be the same in all hospitals (standardized)
Protection for not meeting quotas while training staff

Group 1:
Tech changes addressed
Stronger job security language
Less contracting out and reassignment
OCHU lobby to remove the LHINs
Support and establish a clerical committee
Provincial Clerical Day

Group 2:
Workload non-professional
Able to grieve workload issues
Coordinate wage rates across the province
Education funded
Protection from contracting-out and automation

Group 3:
Centralized language on working at home
Better opportunities for education in-house
More communication is pursued with clerical workers prior to bargaining

Group 5:

OCHU send out survey to get information of job duties
Portability of seniority between locals
Premium pay for mentoring new staff
Another clerical convention