Wildcat strike put spotlight on new facility, raises questions about refusing unsafe work
When the Alberta government announced its intention to build a $308-million remand centre to cope with a rising number of inmates in 2006, the Alberta Union of Provincial Employees (AUPE) greeted the news with open arms.
But that sentiment shifted considerably as the project was delayed — ultimately costing $580 million — and, by 2010, claims of overcrowding and budget cuts saw the union expressing concerns about worker safety and forming information picket lines.
“These are high-security institutions and these cuts are going to put staff and inmates alike at serious risk of injury and assault,” said AUPE president Guy Smith.
AUPE also had concerns about the designs for the new centre, which was to feature open-concept staffing stations instead of secure staff stations enclosed in shatter-proof glass.
As the centre’s imminent opening approached in the spring of 2013, the union asked the government to delay transferring prisoners to the new centre until safety concerns were met.
It raised its concerns with Minister of Justice and Solicitor General Jonathan Denis and also filed a formal health and safety complaint.
“I’m extremely frustrated the department hasn’t taken our members’ safety concerns seriously over the last several months,” said Smith, warning AUPE would advise its members of their right to refuse unsafe work if the government pushed ahead.
On April 26, the union anted up — and correctional officers at the new facility went on a five-day wildcat strike supported by other unions.
The protest was ultimately declared illegal by the Alberta Labour Relations Board. But by then, the media attention was intense and the issue of workers refusing unsafe work was back in the spotlight.
According to Alberta’s Occupational Health and Safety Act, no worker shall carry out any work “on reasonable and probable grounds,” if she believes there is an “imminent danger” to the health or safety of herself or another worker.
A worker who refuses to carry out the work should then notify her employer of her refusal and the reason why.
The employer should then investigate and take action to eliminate the danger, prepare a written record of the worker’s notification, the investigation and the action taken, and give the worker a copy of the record.
If the worker feels the imminent danger still exists, she may file a complaint with an OHS officer, who would prepare a written record of the complaint, the investigation and the action taken — and give a copy to the worker.
The worker can then request a review of the matter by the Occupational Health and Safety Council, which may dismiss the request or require the employer to eliminate the imminent danger.
Long list of concerns: Union
There was a long list of safety concerns at the new remand centre, according to Dennis Malayko, AUPE’s occupational health and safety representative, including:
•structural deficiencies, such as weak glass in windows
•untested doors that could be kicked open
•a public announcement system and computer system controlling access and egress that were not fully functioning
•dated technology used to place offenders and classify supervision
•doors without meal slots
•blinds spots not covered by cameras
•outdated fire equipment
•non-structural issues, such as out-of-date training, full occupancy rather than gradual occupancy, and the disbanding of an employer-officer project consultation committee.
“We will continue to put forward our position that an officer is in imminent danger if they do not possess the competency, training, experience or have the policy and procedure, equipment (such as) Kevlar, pepper spray to safely do their jobs,” he said.
The new remand centre is large, housing nearly 2,000 inmates, and as the number of inmates gets larger, the potential for mischief, mayhem and unsafe work increases, according to Bob Barnetson, associate professor of labour relations at the Centre for Interdisciplinary Studies at Athabasca University in Alberta, adding the building is also more open concept.
“This is sometimes called the ‘hug-a-thug model,’ so workers are often in direct contact with a large number of inmates.”
AUPE has been raising concerns about this for years and suggested changes, along with filing complaints with Alberta OHS, and while the group did investigate, the report was not released to the union, he said.
“In general, the employer has been fairly unco-operative in large part, I think, because they’ve made a significant contribution to this hug-a-thug model,” said Barnetson. “All of those things — perhaps a dodgy design, teething issues and generally a lack of responsiveness by the government, the employer, to this unsafe work — all seem to have contributed to the wildcat strike.”
The employer’s hazard assessments did not reflect any of AUPE’s concerns and basically dealt with post-occupancy rather than taking into account the structural and equipment deficiencies that would pose a risk to members, said Malayko.
“The assessment we provided was a true pre-occupancy hazard assessment as required by the OH&S legislation. The employer did not provide us (with) a copy of the hazard assessments — we were able to obtain a copy from a member who is employed at the centre.”
The union filed a complaint with the provincial OH&S when the employer’s hazard assessments became official and it was apparent the hazards identified by AUPE were not included on the list, he said.
OH&S then conducted an investigation “but all contract employees were removed just prior to the investigation (and), as a consequence, the officers were not getting a complete picture of hazards nor did they interview workers on shift.”
Employer has to investigate if worker not satisfied: Lawyer
If a supervisor and worker can’t work out a disagreement around unsafe work, the employer has to investigate, said Lorna Pawluk, associate counsel at law firm Bernard in Vancouver.
“They have to keep going through every level until the worker is satisfied,” she said. “What an employer needs to be sure of is to follow the procedure because even if, in the end, the worker’s concern is found to be unreasonable, the employer can be held liable for failure to comply with policy and procedure.”
If a worker is unsatisfied with the preliminary investigation, he can make a complaint that he’s been discriminated against, which brings about a whole different raft of remedies or orders, said Pawluk.
For example, if someone repeatedly refuses unsafe work because he claims there is mould and he is then terminated for that complaint, the board can order reinstatement and back pay — even if the mould wasn’t there.
“Listen, when these things come, employers have got to take them seriously — there’s just no option.”
It’s definitely in an employer’s interest to address health and safety issues in a good faith manner when they’re brought up, said Barnetson.
“Workers aren’t stupid — if their concerns are getting brushed aside, they are still going to have those concerns and may take other forms of action.”
And it’s easier and probably cheaper to resolve a physically unsafe condition, in most instances, said Pawluk.
“But where you get these amorphous complaints about ‘There’s mould seeping through the walls’ and you’ve been testing nine ways to Tuesday and the hygienists are telling you there’s no mould, what do you do?”
Workers often don’t really understand the conditions they’re working in and unions frequently target conditions that aren’t unsafe, said Pawluk. Sometimes there are political reasons behind the complaint or one or two really influential employees who are just wrong.
“If the courts and the labour relations board have found that it was unreasonable and they persisted, I think you probably would scratch the surface a little bit and find a labour relations problem. And frequently the right to refuse unsafe work is really used as a tool where there’s really some kind of dispute.”
“We do know a good labour relations culture will bring about a good safety culture. They often go hand in hand.”
However, Barnetson said he has not seen any evidence of workers misusing the right to refuse unsafe work.
“More often what I see is that employers seek to get around a work refusal, sometimes by allowing the worker to refuse the work and telling another worker to do it.”
The vast majority of work refusals come from unionized workplaces, even though unionized workplaces tend to be in the minority, he said.
“That’s because workers who don’t have union protection typically fear there will be consequences, however illegal they may be, for reporting unsafe work.”
Workers are often penalized for raising safety concerns, according to Malayko, citing as examples, “the chill effect,” being overlooked for overtime, isolated or put under a microscope.
Going forward, the remand centre may need to make a significant change to its infrastructure or take some kind of administrative action, such as increasing staffing complements, to minimize the hazards, said Barnetson.
“There’s significant political pressure on the government to take action here. The strike received broad public support because the employer’s actions were so egregiously irresponsible. Health and safety is one of those things that everybody cares about.”
Sarah Dobson is a senior editor with Canadian HR Reporter.
But that sentiment shifted considerably as the project was delayed — ultimately costing $580 million — and, by 2010, claims of overcrowding and budget cuts saw the union expressing concerns about worker safety and forming information picket lines.
“These are high-security institutions and these cuts are going to put staff and inmates alike at serious risk of injury and assault,” said AUPE president Guy Smith.
AUPE also had concerns about the designs for the new centre, which was to feature open-concept staffing stations instead of secure staff stations enclosed in shatter-proof glass.
As the centre’s imminent opening approached in the spring of 2013, the union asked the government to delay transferring prisoners to the new centre until safety concerns were met.
It raised its concerns with Minister of Justice and Solicitor General Jonathan Denis and also filed a formal health and safety complaint.
“I’m extremely frustrated the department hasn’t taken our members’ safety concerns seriously over the last several months,” said Smith, warning AUPE would advise its members of their right to refuse unsafe work if the government pushed ahead.
On April 26, the union anted up — and correctional officers at the new facility went on a five-day wildcat strike supported by other unions.
The protest was ultimately declared illegal by the Alberta Labour Relations Board. But by then, the media attention was intense and the issue of workers refusing unsafe work was back in the spotlight.
According to Alberta’s Occupational Health and Safety Act, no worker shall carry out any work “on reasonable and probable grounds,” if she believes there is an “imminent danger” to the health or safety of herself or another worker.
A worker who refuses to carry out the work should then notify her employer of her refusal and the reason why.
The employer should then investigate and take action to eliminate the danger, prepare a written record of the worker’s notification, the investigation and the action taken, and give the worker a copy of the record.
If the worker feels the imminent danger still exists, she may file a complaint with an OHS officer, who would prepare a written record of the complaint, the investigation and the action taken — and give a copy to the worker.
The worker can then request a review of the matter by the Occupational Health and Safety Council, which may dismiss the request or require the employer to eliminate the imminent danger.
Long list of concerns: Union
There was a long list of safety concerns at the new remand centre, according to Dennis Malayko, AUPE’s occupational health and safety representative, including:
•structural deficiencies, such as weak glass in windows
•untested doors that could be kicked open
•a public announcement system and computer system controlling access and egress that were not fully functioning
•dated technology used to place offenders and classify supervision
•doors without meal slots
•blinds spots not covered by cameras
•outdated fire equipment
•non-structural issues, such as out-of-date training, full occupancy rather than gradual occupancy, and the disbanding of an employer-officer project consultation committee.
“We will continue to put forward our position that an officer is in imminent danger if they do not possess the competency, training, experience or have the policy and procedure, equipment (such as) Kevlar, pepper spray to safely do their jobs,” he said.
The new remand centre is large, housing nearly 2,000 inmates, and as the number of inmates gets larger, the potential for mischief, mayhem and unsafe work increases, according to Bob Barnetson, associate professor of labour relations at the Centre for Interdisciplinary Studies at Athabasca University in Alberta, adding the building is also more open concept.
“This is sometimes called the ‘hug-a-thug model,’ so workers are often in direct contact with a large number of inmates.”
AUPE has been raising concerns about this for years and suggested changes, along with filing complaints with Alberta OHS, and while the group did investigate, the report was not released to the union, he said.
“In general, the employer has been fairly unco-operative in large part, I think, because they’ve made a significant contribution to this hug-a-thug model,” said Barnetson. “All of those things — perhaps a dodgy design, teething issues and generally a lack of responsiveness by the government, the employer, to this unsafe work — all seem to have contributed to the wildcat strike.”
The employer’s hazard assessments did not reflect any of AUPE’s concerns and basically dealt with post-occupancy rather than taking into account the structural and equipment deficiencies that would pose a risk to members, said Malayko.
“The assessment we provided was a true pre-occupancy hazard assessment as required by the OH&S legislation. The employer did not provide us (with) a copy of the hazard assessments — we were able to obtain a copy from a member who is employed at the centre.”
The union filed a complaint with the provincial OH&S when the employer’s hazard assessments became official and it was apparent the hazards identified by AUPE were not included on the list, he said.
OH&S then conducted an investigation “but all contract employees were removed just prior to the investigation (and), as a consequence, the officers were not getting a complete picture of hazards nor did they interview workers on shift.”
Employer has to investigate if worker not satisfied: Lawyer
If a supervisor and worker can’t work out a disagreement around unsafe work, the employer has to investigate, said Lorna Pawluk, associate counsel at law firm Bernard in Vancouver.
“They have to keep going through every level until the worker is satisfied,” she said. “What an employer needs to be sure of is to follow the procedure because even if, in the end, the worker’s concern is found to be unreasonable, the employer can be held liable for failure to comply with policy and procedure.”
If a worker is unsatisfied with the preliminary investigation, he can make a complaint that he’s been discriminated against, which brings about a whole different raft of remedies or orders, said Pawluk.
For example, if someone repeatedly refuses unsafe work because he claims there is mould and he is then terminated for that complaint, the board can order reinstatement and back pay — even if the mould wasn’t there.
“Listen, when these things come, employers have got to take them seriously — there’s just no option.”
It’s definitely in an employer’s interest to address health and safety issues in a good faith manner when they’re brought up, said Barnetson.
“Workers aren’t stupid — if their concerns are getting brushed aside, they are still going to have those concerns and may take other forms of action.”
And it’s easier and probably cheaper to resolve a physically unsafe condition, in most instances, said Pawluk.
“But where you get these amorphous complaints about ‘There’s mould seeping through the walls’ and you’ve been testing nine ways to Tuesday and the hygienists are telling you there’s no mould, what do you do?”
Workers often don’t really understand the conditions they’re working in and unions frequently target conditions that aren’t unsafe, said Pawluk. Sometimes there are political reasons behind the complaint or one or two really influential employees who are just wrong.
“If the courts and the labour relations board have found that it was unreasonable and they persisted, I think you probably would scratch the surface a little bit and find a labour relations problem. And frequently the right to refuse unsafe work is really used as a tool where there’s really some kind of dispute.”
“We do know a good labour relations culture will bring about a good safety culture. They often go hand in hand.”
However, Barnetson said he has not seen any evidence of workers misusing the right to refuse unsafe work.
“More often what I see is that employers seek to get around a work refusal, sometimes by allowing the worker to refuse the work and telling another worker to do it.”
The vast majority of work refusals come from unionized workplaces, even though unionized workplaces tend to be in the minority, he said.
“That’s because workers who don’t have union protection typically fear there will be consequences, however illegal they may be, for reporting unsafe work.”
Workers are often penalized for raising safety concerns, according to Malayko, citing as examples, “the chill effect,” being overlooked for overtime, isolated or put under a microscope.
Going forward, the remand centre may need to make a significant change to its infrastructure or take some kind of administrative action, such as increasing staffing complements, to minimize the hazards, said Barnetson.
“There’s significant political pressure on the government to take action here. The strike received broad public support because the employer’s actions were so egregiously irresponsible. Health and safety is one of those things that everybody cares about.”
Sarah Dobson is a senior editor with Canadian HR Reporter.
