Submission to Review of Office of the Workers' Advisor (OWA)
October 5, 1998
Submission To Review Of Office of the Workers' Advisor (OWA)
by Canadian Auto Workers Union
October 5, 1998
The OWA (Office of the Workers' Advisor) is an Essential Service:
Our union represents over 125,000 members in Ontario workplaces in every industry from auto to aircraft, airlines to bus lines, trucking companies to railways, foundries to electrical shops, casinos to computer factories, mines to credit unions, fishing to breweries and hotels to automotive dealers. We have members in large scale industry, offices and small shops around the province.
Though the type of work performed in these workplaces may have little in common, one thing that unites the workers in all of them is the problem of workplace injuries, occupational diseases and workers' compensation.
We know from personal experience the hardship workers suffer when they are injured and the difficulties of establishing a workers' compensation claim.
Workers need representation in dealing with the WSIB
There are over 300,000 workers' compensation claims filed each year in Ontario. The Workplace Safety and Insurance Board (WSIB) is a big (multi-billion dollar) organization with very complex rules. In particular, dealing with the appeal system requires a thorough knowledge of the new and old Acts and Board policies and procedures as well as resources and know how to do research, contact the right people and understand the issues. The injured worker knows nothing about the system until he/she has reason to deal with it and is in no position to deal adequately with this situation.
In addition many workers do not speak English as a first language and/or do not have a high school education. Also workers are subject to pressure from their employers who seek to reduce their WSIB assessments by trying to disentitle workers from receiving benefits from the Board.
Non unionized workers, in particular, have need of representation for several reasons.
1. They have no one to turn to for assistance. Unlike workers in unionized settings who have union representatives to assist in issues to do with their employer or government agencies, they have no support organization. In particular there is no one at the workplace to advocate for their return to work or to represent the worker if they return to employment.
2. Non-unionized workers come under much more pressure from employers, because they have no real protection from unscrupulous employers.. They can easily be fired or penalized through such things as changes in work assignment or shift schedules.
3. More often than not they do not have adequate benefit programs, such as sickness and accident benefits to fall back on when the workers' compensation system fails them. Their situation is usually more desperate than that of the unionized worker.
4. Those who do represent injured workers with no union have no access to the workplace and therefore require a high degree of experience not only with the Board but also with dealing with employers as well as understanding how non-union workplaces function.
How the CAW organizes our workers' compensation representation
The CAW is the largest private sector union in Ontario. A good percentage of the 300,000 plus claims in the province come from CAW organized workplaces. The only practical way for us to handle the workload is for claims to be dealt with at the local union or workplace level.
We have more than 160 local unions in Ontario. Though some are single unit locals (ie. covering one workplace only) most are amalgamated locals covering several different workplaces - in some cases as many as 60 workplaces.
Each local union is responsible for handling workers' compensation claims. They must insure that someone is elected or appointed to represent workers at the Board and WSIAT (Workplace Safety and Insurance Appeals Tribunal). At a minimum there will be one person in the local who handles claims and often there will be one union representative per workplace to handle claims. This person changes as a result of elections, retirement, promotion to other positions, etc. Those taking over this responsibility have to be trained and must gain experience.
The larger workplaces and local unions have people working full time on workers' compensation claims. In these cases often the worker representative is overwhelmed with the case load. Large workplaces have lots of accidents and workers' compensation appeals.
Often smaller locals will assign workers' compensation claims to an executive board member who is already overworked doing other duties for the local. These representatives usually have a full time job which they must attend to in addition to representing workers with their workers' compensation claims.
The National Office provides back up and resources through a national representative who works in the Health and Safety Department. The backup role is to ensure that there is education available for those who need training and to direct union representatives to the right place to obtain the information and assistance they need.
The CAW like other unions is overextended providing representation to injured workers. The OWA plays a critical role in assuring that we can effectively play a role in representing our members who are injured at work.
The OWA provides educational material and operating tools that assist our workers' compensation representatives in carrying out their job. It is particularly helpful in providing smaller unions and new union representatives with assistance in developing skills to deal with complex cases. They have also been of assistance in our larger locals in providing research resources and case handling strategies to improve claims handling efficiency.
The OWA has assisted us at numerous workers' compensation conferences put on by our union by providing a number of speakers, including the very capable Director of the OWA, Alec Farquhar, as well as workshop leaders to provide expert presentations on issues as diverse at musculoskeletal injury claims to occupational cancer. The OWA also provides very up-to-date state of the art resources such as preparing some of the most useful Internet resource materials and even presented a workshop on the issue at one of our CAW workers' compensation conferences.
All of our workers' compensation training in the Province of Ontario is provided through the OFL WCB Training Project. Our local compensation representataives are sent through a minimum of Levels I to III and more often than not as well to the Return to Work Course and Medical Orientation. As well as attending courses in various communities around the province, we offer the OFL WCB courses through our negotiated, Paid Education Leave program.
The massive number of injuries and occupational diseases and therefore claims at the Board requires organized and broad intervention to assist injured workers if we are to maintain not only benefits, rights and dignity for the injured workers, but some order in the system.
This point cannot be overemphasized. We know from the history of injured workers' efforts to obtain compensation that this can be an explosive issue. We need only look at the '70's and '80's with the strikes at Elliot Lake in the uranium mines and the mass work refusals at MacDonnell Douglas and DeHavilland aerospace plants to see how health and safety and workers' compensation issues have led to eruptions of worker anger resulting from the frustration of life threatening injuries and occupational diseases, loss of income and dignity and claims denied.
Adequate representation is a prerequisite to achieving justice for injured workers and to making the system work.
We are not required by law to represent workers in claiming workers' compensation for workplace injuries and occupational diseases. We, like other unions, do so out of a sense of responsibility to our members. The union movement puts tremendous effort into making the workers' compensation system function. But as large as we are we are not able, in the context of today's workers' compensation system in Ontario, to provide adequate representation to our members if left entirely to our own resources.
As for non unionized workers, they have no option if left to their own resources. There is nowhere for them to go except to their local MPP's who are already overburdened with workers' compensation claims. Alternatively, they may go to private consultants who more often than not provide inadequate representation at a high cost. (There are so many workers' compensation cases and appeals, that there is plenty of room for private consultants to make money even if they do not win appeals or even properly handle them.)
If we cut back on representation to injured workers the system will break down. Dissatisfaction and anger will come to the surface.
Rather we need to:
- Maintain the public delivery of representation for injured workers.
- The system should guarantee injured workers the right to representation. Justice must be seen to be done. Injured workers, already at a disadvantage, cannot afford to compete with employers who far more money to spend.
- Injured workers cannot afford the cost of a private delivery model of representation. They already suffer loss of income and security brought about by workplace injuries. A private delivery model is the antithesis of a fair compensation system.
- Private consultants on the whole, have not represented the interests of injured workers effectively. Their objective is profit first and foremost. They contribute to the inefficiencies of the system because they have no interest in making it work. Their income is based on generating the most, not the least, amount of conflict.
- Maintain an arm's length relationship between the Board and the Ministry of Labour
- There is no other way to have an effective representational system for injured workers.
- Justice must be seen to be done. Injured workers must have the confidence in their representatives that is only possible with an arm's length organization.
- They will not make use of an organization that they do not perceive as representing their interests. If the OWA is not maintained as an arm's length organization it will force injured workers out of the system.
- Improve public accountability
- Restore an Advisory Council for the OWA composed of injured workers groups, the disabled community, the rehabilitation community and the labour movement.
- This approach provides accountability to the community that the OWA serves as well as input.
- It makes the system function smoothly. Again, justice must be seen to be done.
- Maintain and improve representation services to the broader community.
- The labour movement cannot adequately represent our members at the Board amd the WSIAT if we do not have the assistance that the OWA is able to provide.
- The labour movement is not required by law to represent injured workers with their workers' compensation claims.
- We do not have the resources to train the hundreds of workers' compensation representatives to handle claims. We rely on the OFL WCB Training Project to train and update our hundreds of worker representatives. And we rely on the OWA educational materials to update our representatives and give them tools to better represent our members. If these services are not maintained it will force us out of the system.
- Restore the right for the OWA to represent unionized injured workers. For ou union, this is only an issue in areas where there are small plants and locals which are unable to effectively represent injured members. Other unions, however, have different structures and the lack of direct OWA representation has adversely affected their members.
- Raise the profile of the Office of the Worker Advisor
- The efficiencies of early resolution to problems between injured workers, the Board and the employers are possible if workers know they can turn to the OWA. The Board should advise injured workers of the availability of assistance from the OWA when a decision is rendered - or before.
The OWA is an essential service for maintaining a functioning representation system for injured workers in Ontario and for maintaining relations between government, workers and employers.