YUFA
External
Report on OFL Conference “Accommodation and Disability Rights and
Responsibilities”
September 27, 2003. Ottawa, Ontario
By Arthur Hilliker
I received a package of documents which I will
place in the YUFA Office and which I have numbered in pen on the upper
right hand corner for reference.
The meeting began the morning
of September 27, 2003 (there was a reception the previous evening).
The meeting was bilingual with simultaneous translation available.
The meeting began with an “Allergy Alert” (see Document 1) in which it
was requested that attendees refrain from use of perfume, cologne and
aftershave and that if they have used it to wash it off during the first
break. Attendees were also
alerted to the OFL Harassment Policy (Document 2). The first OFL Conference on this topic was held in Toronto in
2002 and several regional conferences were scheduled for this year.
An Outline (Agenda) for the conference was provided (Document 3).
The first plenary speaker was
a lawyer, Lisa Addario, who works for the Public Service Alliance of
Canada. She provided an
excellent summary of her presentation (Document 4
[PDF]) entitled “Legal
Developments in the Duty to Accommodate Persons with Disabilities”.
There has been a recent Supreme Court of Canada decision, which
rejected the old approach to accommodation of people with disabilities.
The “Meiorin Decision” has resulted in a new approach to
disabilities by making the workplace inclusive overall, by removing
barriers to equal access and participation in the workplace and by being
“proactive” rather than “reactive”.
Indeed, the consequences of the decision are still being resolved
and the area of accommodation is a rapidly changing and somewhat unclear,
perhaps, area of the law. In
addition to the obligations of the employer the union has a legal
obligation to advocate for and assist in accommodation including
negotiation of appropriate provisions in collective agreements.
In addition to the detailed summary of her presentation (Document
4), Lisa Addario made reference to a paper by Michael Link entitled
“Disability and the Duty to Accommodate”.
A synopsis of the Lynk article is provided in Document 5 and the
full text of the article is provided in Document 6 (Reference Materials
Volume 1). Kate Hughes,
a Toronto lawyer, also provides the text of the Meiorin Decision in
Document 6 along with an overview of the decision and its impact on
disability rights.
The next speakers, Linda
Bemben of PSAC and John Rae of OPSEU, gave a joint presentation entitled
“Strategies for the Building of Understanding and Support for
Disabilities Issues within the Labour Movement”.
They believe that the timing for proactive work by unions on
accommodation issues has arrived. The climate has changed, partially due,
perhaps, to the Meiorin decision. However,
people with disabilities are still not well represented in union
executives, councils and committees and there is an “invisible”
community of union members who have not declared their disabilities.
Clearly the union leadership has to take on the issue of
accommodation and give it a high priority.
Document 7 entitled “Accommodation Guidelines and Principles for
Local Unions” nicely summarizes the means by which unions can advance
accommodation. It was held that the Ontario “Disabilities Act, Bill 125
(Document 8) was largely toothless and a disappointment.
Document 9 provides an OFL paper entitled “Persons with
Disabilities – Labour’s View” which presents the OFL point of view
and action plan on accommodation. Document
10 presents the Ontario and Human Rights Commission “Policy and
Guidelines on Disability and the Duty to Accommodate”.
The next speaker Carol
Robertson of CUPE Quebec (retired) spoke about how to examine the
workplace to identify and eliminate barriers to people with disabilities. In this regard, a workplace “disability” audit would be
an important exercise. Again
the emphasis is to be proactive rather than, as in the past, reactive.
The meeting then broke up
into workshops. I attended the English language workshop on Collective
Agreement language. One key point was raised was that before writing
language to propose for inclusion in their own collective agreement on
accommodation, unions should look at what other unions have done.
Document 11, entitled “Disability Provisions in Collective
Agreements in Canada” and prepared by Cindy Wiggins of the CLC, was
provided. Document 12,
entitled “Return to Work Programs & Sample Language”, is also
relevant.
The following additional
documents were provided. Document 13 is entitled “Accommodation: A
Sampling of Arbitration Cases Dealing With Various Aspects of
Accommodation”. Document
14, entitled “Union Experience of Accommodating Members With
Disabilities” and prepared by Keith McMillan of CEP, deals largely with
return to work practices and nicely complements Document 12. Document 15,
a pamphlet entitled “Duty to Accommodate, A PSAC Guide for Local
Representatives, March 2000”, adopts a “question and answer” format
reviewing succinctly the accommodation issues from the perspective of PSAC.
Document 16, a pamphlet entitled “Disability rights in the
workplace: Understanding duty to accommodate” and prepared by CUPE, is
also a succinct review of accommodation issues.
The final plenary session was
largely focused on the upcoming Ontario election. However, the call did go out to attendees to go back to their
unions and make a difference on accommodation issues.
I found the conference to be a very informative and useful one. The documentation provided was all of value. The document I would recommend to be of most general interest and certainly the one that should be read first by anyone interested in accommodation issues is Document 4, the summary of the presentation by Lisa Addario, “Legal Developments in the Duty to Accommodate Persons With Disabilities”.