Tuesday, November 24, 2015

Presentation: Changes to Alberta's labour laws

Overcoming legal barriers to fair labour practices
Parkland Institute 2015 Conference, 22 November 2015
Bob Barnetson, barnetso@athabascau.ca

Hey, I’m Bob and I teach labour stuff at Athabasca University. What I’m going to talk about today are changes to Alberta’s labour laws that should help reverse declining union density in Alberta. As most of you likely suspect, Alberta has the lowest rate of unionization in Canada at 22%. And, in the private sector, Alberta union density is actually only 11%.

Union density matters for lots of reasons. Workers who are union members tend to have better lives. They earn more money. They have better benefits. And they are less vulnerable to capricious employers.

And jurisdictions with high levels of unionization tend to see relatively small wage differences and fewer instances of precarious work. These are important issues in Alberta, given the huge gap between the earnings of men and women.

More philosophically, union density is a fair measure of workers’ abilities to exercise their associational rights—the right to act in concert with other workers to better their lives. That’s a right that’s protected in the Charter.

One of the interesting things about union density is that about a third of non-unionized workers say they would like to be in a union. But—for lots of reasons—aren’t. What this means is that there is a large untapped market for union membership.

One factor that contributes to Alberta’s low union density is its regressive labour laws. These laws reflect the overt hostility of the Social Credit and the Conservative government towards workers and unions.

So what I’m going to do in the next 15 minutes is outline five ways that the current government could make it easier for workers to exercise their associational rights by changing the Labour Relations Code—changes that should increase union density. These reforms include card-check certification, first-contract arbitration, remedial certification, sectoral bargaining, and minority unionism.

I’m happy to take questions as we go but there will also be time for questions at the end. That sound alright?

Card-Check Certification

Canada’s current labour relations regime is based upon the US Wagner model. Basically the Labour Board is responsible for certifying a union as the official bargaining agent for a group of workers.

Unions can get certified in two ways. Alberta requires a mandatory vote of the workers that happens about 10 days after the union files its application for certification with the Labour Board.

Other jurisdictions allow a union to be certified solely based on a majority of workers signing union cards—that is to say, there is no vote required. This is called card-check certification.

Up until 1977, all Canadian jurisdictions used card-check certification. Presently, though, card check operates only in Quebec, PEI, Manitoba and in Ontario’s construction sector.

The evidence on card-check certification is really clear: its results in more organizing drives by unions and more successful certifications.

The most robust analysis is out of BC. BC moved away from card check to mandatory votes in 1984. This change resulted in a 50% reduction in the number of organizing drives and union success rates also declined by 19%.

BC returned to card check certification in 1993 and the number of organizing drives increases (for a time) and success rate of those drives jumped by 19%. Other studies show basically the same thing.

The reason unions run more organizing drives and are more successful under card check is that it card check limits the opportunity for the employer to put a chill on an organizing drive.

What this means is returning Alberta to card-check certification should increase both the amount of organizing in Alberta and its success—both things that will drive up union density. This is kinda of a no brainer.

Remedial Certification

In addition to card-check certification, the government of Alberta could change the law to allow the Labour Board to grant automatic certification when employers significantly interfere with union organizing campaigns.

Remedial certification is necessary because up to 80% of employers overtly and actively resist union organizing efforts. This employer interference profoundly impacts workers’ ability to exercise their associational rights free.

For example, when employers engage in unfair labour practices—which is a subset of all forms of resistance—the success of certification drives drops by 14%. Remedial certification eliminates the incentive for employers to fool around because, if any employer pooches the vote, they’re gonna get certified anyhow. Ontario’s experience suggests having remedial certification significantly reduces unfair labour practices during organizing drives.

Now Alberta’s Labour Code currently allows the Labour Board to remedially certify a union. But that certification has to be confirmed by a vote of the affected workers. Since the purpose of employer interference is to pressurize workers into voting against the union, conditioning remedy on a likely poisoned vote is pretty nonsensical.

First-Contract Arbitration

First contract arbitration is another way that the government could also enhance workers’ ability to exercise their associational rights.

Under first-contract arbitration, if a first round of collective bargaining reaches impasse, either side can apply for resolution via arbitration, rather than being forced into a strike and/or lockout.

The need for first-contract arbitration reflects that some employers will stonewall the union during the first round of bargaining in the hope breaking the union. Basically, the employer uses the first round of bargaining to refight the certification vote that it just lost.

Now the purpose of collective bargaining is actually to reach a mutually agreeable collective agreement—employer reps might want to write that down—not to re-fight the certification campaign. And first-contract arbitration addresses inappropriate employer behaviour by eliminating the incentive to stonewall.

First-contract arbitration is available in the majority of Canadian jurisdictions. Experience (particularly in British Columbia, Ontario and Quebec) suggests its availability so reduces employers’ incentive to stonewall unions that first-contract arbitration is rarely invoked. Instead, employers bargain like they are supposed to.

Sectoral Bargaining

The final change Alberta could make to the Wagner model is expanding sectoral bargaining. Sectoral bargaining allows a union to negotiate a single contract that covers multiple worksites and/or employers. When new worksites or employers are unionized, they become subject to the master agreement.

Sectoral bargaining addresses the challenges of organizing small workplaces. Organizing and then subsequently servicing a unit in a small workplaces is a relatively high-cost undertaking (for both the union and the employer).

In addition to those higher costs, there is a lack of organizational distance between workers and employers in small enterprises that reduces the anonymity of union supporters. This makes organizing drives in small workplaces riskier for workers and more prone to failure.

These are important problems because 98% of all employers have fewer than 100 workers and small enterprises employ two-thirds of private-sector workers.

Most provinces (including Alberta) use sectoral unionization in the construction industry, where often employers are small and work is transitory. Quebec’s labour legislation also provides for decrees that extend provisions of collective agreements across an industrial sector, such as the automotive services sector in Montreal.

To date, there has been no research I could find about how sectoral bargaining affects unionization rates. Mostly likely that’s because there have been no “natural experiments” to observe. But the logic of sectoral bargaining is really compelling.

Allowing unions to negotiate multi-employer agreements reduces the costs associated with organizing small workplaces—so there will likely be more organizing drives. And combined with card-check certification provisions that reduce the risk of certification to workers in small workplaces, sectoral bargaining should increase the ability and willingness of these workers to organize.

Minority Unionism

So far, I’ve talked about ways to improve the existing model of labour relations. If the government wanted to look beyond Wagnerism, it might well consider minority unionism.

Under the current Wagner system, unions are organized on the principle of exclusive majority unionism. Basically, a union has to be selected by a majority of workers in a bargaining unit to represent those workers.

One effect of that requirement is that there tends to be a gap between the demand for union representation and workers’ access to it. For example, some workers will want to be represented by a union but they won’t be able to convince a majority of their colleagues to go along with that so the union supporters will remain non-unionized. That dynamic explains, in part, the union representation gap I mentioned at the beginning.

Some academics suggest that legislation allowing only exclusive majority unionism may actually be unconstitutional because those laws deny some workers any way to meaningfully exercise their freedom of association.

An alternative to exclusive majority unionism is some form of minority unionism. Minority unionism allows unions representing less than a majority of workers to negotiate and administer collective agreements for those workers that they do represent.

This allows workers to meaningfully exercise their associational rights even when they can’t achieve certification under the Wagner model.

Minority unionism also allows unions to organize workers at lower cost and lower risk. If a union doesn’t think its going to win a certification drive, it might choose to organize a unit on a minority basis. And worksites organized in that manner could then be converted to certified worksites in the future.

Minority unionism might legislatively build upon provisions in the US National Labour Relations Act that protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection.” These concerted-activity provisions would extend protection to non-unionized workers, such as those workers involved in the recent Fight for 15 campaigns. At present, these protections are not available to Canadian workers—unless they are trying to certify a union.


So what are the politics of changing Alberta’s laws to make it easier for workers to exercise their associational rights?

The least controversial changes entail strengthening workers’ abilities to unionize under the Wagner model. For example, card-check certification is a well established process which significantly increases the number of organizing drives and their success rate.

Employers will likely oppose card check by spuriously arguing that it is an undemocratic process because there is no vote. Politically, one way to undercut that criticism is to make the threshold for card-check certification a bit higher than a simple majority. Manitoba, for example, uses 65% as the threshold.

The politics around minority unionism are likely to be much more interesting. Some unions may see legislated minority unionism as threatening, both to their existing monopoly status and their method of operating.

Presently, the only protected way for workers to work in concert is via certification. There are no protections for workers acting together unless they are trying to form a union. This drives workers who want to better their working conditions towards established unions.

Minority unionism would lower the cost of entry for new worker organizations and increase the power of grassroots unions such as the Wobblies. I would think that would be pretty threatening to established unions that have a virtual monopoly on representation under the Wagner model.

Unions that engage with minority unionism will also need to cope with the free-rider effect. That’s to say, the majority of workers in a workplace might well receive most of the benefits achieved by the members of the minority union (because employers typically standardize pay and benefits) without contributing to those efforts. That could place a significant strain on union resources and, I think, would also be threatening.

Finally, unions typically have to internally navigate a tension between their espoused beliefs (i.e., everyone should be organized) and the realities of resource constraints—that it just isn’t economical to organize everyone.

At present, most Alberta unions have an urban-industrial bias. Basically, most of their members work for large, often urban, employers whose don’t aggressively resist the union. There are exceptions, but the general principle seems to hold and leads to economies of scale in terms of representation.

The process of certification under the Wagner model helps to constrain the number of organizing drives for uneconomical bargaining units. Few of these workplaces will ever be certified.

But minority unionism allows for self organization. And successfully self-organized minority units are likely to eventually seek certification in order to gain power in the workplace and access to greater resources from an existing union.

So the question is how many uneconomical bargaining units will unions take on before they starts to feel the pinch? And how would a union reconcile the tension between its espoused beliefs and the realities of union resource limits? That tension creates a profound political and moral quandary for union leaders.

These kinds of considerations may well affect the degree of support the government might receive from organized labour for minority unionism and, thus, the political viability of that option.

So those thoughts bring me to the end of my talk. And I’d be happy to take questions or speeches disguised as questions.

-- Bob Barnetson

Friday, November 20, 2015

Labour & Pop Culture: 48 Hours

This week’s installment of labour and popular culture focuses on The Clash’s “48 hours”—a song about the weekend. God, I hate The Clash—like the Ramones with a head cold. Anyhow…

The crux of this (awful, awful) song is the singers’ need to maximize their enjoyment of their weekend. Written in 1977, the workers in 48 hours were likely employed in soul-crushing Fordist jobs (e.g., factories, mills, shipyards) to which the weekend provided an escape (“monday is coming like a jail on wheels”).

Fast forward 40 years and workers are now likely working the weekend on less-well-paying service-sector jobs. Interestingly, songs about hedonism have kept pace with flexible work (now we party and get wasted on week-nights too!), a theme I’ll explore next week.

friday or saturday, what does that mean
short space of time needs a heavy scene
monday is coming like a jail on wheels

48 hours needs 48
48 hours needs 48
48 hours needs 48
48 thrills

so tell me an' i'll take the tube
you know a girl, yeah well she's bound to be rude
can't get nothing at the places i've been

i've combed this town from top to bottom
i try to get around but my legs are broken
every time i miss it 'cos i ain't got a ticket

48 hours needs 48 thrills
kicking for kicks

-- Bob Barnetson

Tuesday, November 17, 2015

Gender-based analysis online training

One of the more interesting developments in Alberta policy circles in the introduction of gender-based analysis. The crux of this analysis is the notion that the differing characteristics of individuals (gender, ethnicity, ability, age, geography, etc.) affect how individuals benefit (or not) from government policies and programs. The upshot is that policies, programs and services should consider these factors in design and recognize that one size does not fit all.

The federal government has been using gender-based analysis for some time. Status of Women Canada has a very nice (and free!) online introduction (complete with certificate!) available here. It takes about two or two-and-a-half hours to complete and provides an overview of the process and some interesting illustrative case studies (policing, emergency response, forestry, parental leave).

-- Bob Barnetson

Friday, November 13, 2015

Labour & Pop Culture: Managerialism in Star Wars

This week's instalment of labour themes in popular culture is not a song (although I still have plenty of those), but rather a Forbes video that uses Star Wars as a case study in leadership and leadership errors. While anything that casts employers as Sith lords gives me the giggles, there is some actual value in the leadership lessons that Forbes has extracted from franchise.

-- Bob Barnetson

Tuesday, November 10, 2015

Wildrose proposal to private WCB lacks evidence

This weekend is Alberta’s Wildrose Party’s policy convention. One of the proposals from the Innisfail-Sylvan Lake constituency is to have the government consider privatizing the Workers’ Compensation Board (WCB).

Now there are lots of things that need change at the WCB. For example, I heard last week that the WCB recently amended its contracts with occupational medicine physicians to preclude them from offering opinions on occupational disease to workers.

Workers use these opinions to gain compensation for occupational diseases. The WCB using its economic influence to deny workers access to Alberta specialists means the workers must look out of province (or out of country) if they want compensation—a very expensive proposition for injured workers who have no income. If this is true, it is pretty douche-y.

But back to the Rosies. Wildrose members will be voting on a proposal asking the Government of Alberta to:
59. ... Investigate the feasibility and manner in which the current Workers Compensation Board (WCB) system can be opened-up to become a transparent and competitive system with the cost and service benefits such a system could deliver in the provision of this vitally important protection of Alberta’s workers.


The WCB is a monopoly provider of on-the-job accident insurance for many working Albertans. And like all monopolies, it is vastly inefficient, insensitive to its clients - both workers and employers. Removing the monopoly and creating a market for the provision of the mandated coverage would create the much-needed competition and the efficiencies, service and accountability to the employers and employees (and Albertans as a whole) free markets deliver.
Now, to be clear, the WCB is sometimes pretty tough for workers to deal with. The question, though, is the degree to which eliminating the public monopoly would address these concerns. Borrowing liberally from my 2010 book on workplace injuries, let’s look at the simplest claim in the Rosies’ rationale: privatizing the WCB would drive down costs (i.e., create efficiencies).

What precisely is meant by ‘privatization’ varies and can mean one or a mixture of the following:
  1. for-profit insurance companies competing with a non-profit WCB, 
  2. for-profit companies assuming total responsibility for providing insurance within (or without) guidelines established by the state, 
  3. for-profit companies providing insurance but a WCB remains as the insurer of last resort (for those companies no insurance company will take on). 
These approaches form the mainstay of American workers’ compensation systems, in which private companies manage claims, while government determines such matters as eligibility for compensation, benefit levels and provides the processes for appeals.

The basic argument underlying the cost savings rationale is that competition incentivizes private providers to reduce costs. It is useful to first look at this argument from a theoretical perspective. Assume publicly provided workers’ compensation systems have administrative costs of approximately 15%. This means that a private-sector company operating even 10% more efficiently than a public-sector WCB would only see a cost savings of 1.5%.

Private-sector companies, however, must also generate a profit for their investors, something that is sure to negate some or all of the efficiency gains that are assumed to come with privatization. To avoid increasing rates in order to make a profit (and thus invalidating the key argument for privatization—that it will be cheaper), insurers will need to find some other way to reduce costs.

Private insurance companies may try to get employers to reduce accident rates by increasing premiums for unsafe employers. More likely, though, is that private insurers will turn to decreasing benefit levels, reducing the duration of claims, or shifting costs to other programs, such as the health care, the welfare systems, or the workers’ families. These approaches create the appearance that private insurance is less expensive, but in fact represent a cost transfer from industry to workers and the state.

An interesting question is who chooses the insurer in a privatized system with multiple potential carriers. It seems safe to assume that, in choosing an insurer, workers and employers would pursue their own interests.

Furthermore, it appears fair to assert that the adjudication of claims is complex enough that each insurer must exercise some discretion in accepting and managing claims. Thus, if the employer selects the insurer, the employer would likely seek the insurer with the lowest premiums. Low premiums most likely mean the insurer is shifting costs to the injured worker or the government.

By the same token, if the worker selects the insurer, the worker will likely seek the insurer with the most generous track record. This would increase employer costs and thus undermines the purpose of privatization—saving money.

It is also possible that the complexity of the tasks performed by a workers’ compensation system may render the regulation of privatization by the state so complex as to minimize or even eliminate the projected cost savings.

So what does the research about the US systems say?

Terry Thomason compared the experience of per employee assessment of workers’ compensation in Canada and US between 1961 and 1989. Overall, the difference was small (between $2 and $50 per employee) with no particular pattern to the difference. This conclusion finds support in subsequent research which indicates that the costs of publicly provided workers’ compensation are not higher, and may even be lower, than privately provided workers’ compensation. This suggests that privatization does not result in cost savings.

Thomason also notes that, despite similar overall costs, Canadian programs offer more generous benefits and more extensive coverage than the American system. An earlier study by Thomason also indicates that American workers’ compensation systems result in much more litigation, and that administrative costs are twice as high.

A third study in New York State found that claim management by private insurers, and in particular the cost of disputing claims, appears to reflect economic considerations, rather than genuine concern over causation and disability. Furthermore, certain claims were more likely to be disputed and/or adjusted by private insurers in this system.

These more disputed claims included claims by non-English speakers, younger workers (whose greater life expectancy yields higher claim costs), and workers claiming occupational disease or internal injury. This also held true where the claim value was small, and not as likely to be pursued by the worker via litigation.

A further problem with privatization is that of ‘creaming’. Creaming occurs where insurers will only insure low-risk companies (i.e., the ones potentially most profitable to the insurer). Avoiding creaming requires a significant degree of government regulation.

Most damaging to the notion of privatization is that there appears to be no significant research that supports the proposition that privately provided workers’ compensation is less expensive than its public counterpart.

An analysis of workers’ compensation in 48 states from 1975 to 1995 designed to determine (in part) which set of arrangements (public, private or mixed provision) provided the most effective form of delivery concluded there were no clear differences in costs between jurisdictions with exclusively public and exclusively private systems.

Where there is mixed delivery (i.e., public and private providers), employer costs appear to be higher. The overall impression arising out of this research is that privatization does not yield a less costly system for employers or a more equitable system for employees.

-- Bob Barnetson

Friday, November 6, 2015

Labour & Pop Culture: All the labor

This week’s installment of labour themes in pop culture is the Gourds’ “All the labor”. The Gourds were a long-standing alternative band out of the US. Their song All the Labor was a fan favourite.

I’ve listened to this song a couple of times and I'm damned if I can figure out what the message is. I think it is a meditation on life and death and the role of work during the time in between. Perhaps it suggests that, despite our views to the contrary, life is pretty amazing? Or maybe not. Thoughts?

All the labor landed in the sod
Where the digger cried it's my calling, sir
And it is no mistake that I put you in the ground so well
And if they pay me well thats great
It's just gravy I'd do it anyway
All the labor stood up and shouted
I'll wait for you fun lovin' minever cheevy
With all yer drunken delusions I am a sensational place
Of camaraderie and pleasure
Won't you stand with me in your garden once more
All the labor although it be brick on brick
Stitch on stitch and earn to urn
A presence on the lift what this great ole nation was built on boy
Outlives the package everyday mama mama everyday

-- Bob Barnetson

Tuesday, November 3, 2015

Pay equity legislation in Alberta?

A new group (sponsored by the Alberta Union of Provincial Employees) advocating pay equity legislation in Alberta popped up on my facebook feed this weekend. Pay equity is generally taken to mean paying male and female workers the same wage for work of equal value.

One of the more interesting discussions around pay equity is what work is typically considered equal. For example, is extractive work in the resource industry (e.g., logging, mining, roughnecking) more inherently valuable than work in social reproductive industries (e.g., child care, cleaning, cooking, nursing)?

Certainly the former tend to be paid more than the latter. But that does not mean they are inherently of greater value. Rather, this pay difference reflects that occupational value is a social construction and, historically, work typically performed by women has been constructed as less valuable than work typically performed by men.

The result of this has been a persistent wage-gap, wherein women tend to be paid less than men, even in similar jobs. A Parkland Institute study this spring found women in Alberta earn about 63% of men in similar jobs. And, when you stop controlling for the type of job held, women earn about 56% of what men do. A knock-on effect of this wage gap is that women are more likely to be low-wage workers and live in poverty.

Like all Canadian jurisdictions, Alberta implicitly requires pay equality (i.e., men and women must be paid the same if performing the same job in the same organization) under its Human Rights Code. This reflects that gender discrimination is prohibited. It is unclear whether (1) employers meaningfully comply with this requirement and (2) any women seek remediation for pay inequality under the Human Rights Code (because such complaints are risky and take years to resolve).

Alberta has no explicit provisions or efforts to address pay equity (which operates at the level of occupational groups, not individuals). Enacting pay equity provisions would give women in occupational groups that face systemic gender discrimination a pathway to remedy that discrimination. Depending upon the manner in which pay equity is enacted, it might also place some obligations on employers to demonstrate that they meet the requirements of the legislation.

There is an online petition (that emails MLAs) as well as an interactive pay equity quiz that is worth checking out at the link above.

-- Bob Barnetson