Wednesday, April 9, 2014

Manitoba releases study on WCB claims suppression

The Manitoba Workers’ Compensation Board has just released an independent report into the incidence of claims suppression and the factors associated with his behaviour.  Claims suppression occurs when an injured worker is discouraged from filing or continuing a workers’ compensation claim. Claim suppression most often comes up in discussions of how employers manage their workers’ compensation premiums.

Suppression matters for two main reason. First, it often denies workers benefits in the short term. Second, and more concerning, is the long-term impact of suppression on workers’ eligibility for benefits if they fail to make a claim (i.e., there is no paper trail that the injury is work-related) and experience a recurrence of the injury later on that seriously compromises their ability to earn a living.

The findings of the Manitoba study are disturbing, but not all that surprising. The short version is:
  • Under-reporting: About 45% of workers with lost-time injuries did not claim benefits. About 30% of injured workers who require more than 5 days off do not claim wage-loss benefits. Lack of knowledge about entitlements and preferences for other forms of compensation are said to be more important than overt employer claim suppression.
  • Mis-reporting: Claiming time-loss claims as no-time-loss claims occurs in 15-35% of all accepted no-time-loss claims.
  • Claims suppression: Employer efforts to suppress claims (presumably to minimize workers’ compensation premiums) are widespread. Depending on the approach used to calculate suppression, you get estimates on overt suppression (basically actions by the employer to dissuade claims) 6-30% mark (and it seems to be worse for workers under 35). If you add in passive suppression (such as employers continuing wages), the range is 18-53%.

 The nature of the problem and the method make it very hard to convey “hard” numbers and we should use these numbers with a great deal of caution. That said, the report suggests that overt and passive claim suppression is a significant factor in Manitoba. It would be interesting to see similar estimates from other jurisdictions.

-- Bob Barnetson

Friday, March 28, 2014

Is twitter an effective way to get some action... on OHS?

Three weeks ago, the government indicated it would be lowering the OHS boom on the residential construction industry with an(other) inspection blitz.  Residential construction is notorious for poor safety practices. You can see some WCB data for residential construction general contractors here, although whether this is representative of the industry is hard to know.


I’ve turned in a number of residential construction sites over the years over a lack of fall protection. This usually involves phoning or emailing the OHS contact centre. While there is no recent data on response times, the 2010 Auditor General’s report suggested it can take up to 18 days to get an officer out (actual response times vary, depending on the severity of the risk or injury and case loads).

This slow response time is consistent with Alberta’s lack of interest in enforcing its employment laws in general. Given the transiency of many residential construction sites (e.g., roofing jobs can be done in a day) this delay makes enforcement difficult—the job may be done and the company gone before anyone can arrive on site.

One way activists have been triggering Alberta to respond to long-term issues (e.g., elder abuse in care homes, children dying in foster care) is to publicly embarrass the government. By politicizing the issue, activists van avoid having it disappear into the bureaucracy that Alberta has developed to (privately) manage (and diffuse) such issues.

Last Thursday, I watched some construction workers across the street lift a bunch of joists atop of a two-storey house. This included the workers walking the snow-covered outside walls (with no fall protection) in order to position the beams. Then I tweeted the Minister:


There were three OHS inspectors on-site in less than an hour. Then they went away and the guys were back at it so I tweeted the Minister again.


This time there was an OHS inspector there in 10 minutes and he stayed for the afternoon. I presume he was doing paperwork in his truck. It was quite interesting to see the workers work for a bit, then peer over the edge to see if his truck was still there.

Interestingly, the minister tweeted back, noting the workers were in compliance the second time. Clearly he was interested enough to have a report come back up to him, And the speed of the response was uncharacteristic of most ministerial actions requests in government.


While I haven’t been keeping a close watch in the worksite since then, I have seen the workers wearing harnesses.

The main conclusion I’d draw from this case (recognizing n=1) is that tweeting OHS complaints with pictures and including a hashtag that lots of people follow (e.g., #ableg) is an effective way to trigger rapid enforcement.

I’d guess this is because it makes (1) noncompliance public and (2) it “tags” a politician as responsible for doing something about it. If the worker had fallen to his death, the Minister (rightly or wrongly) would have worn that fatality. And it would have visibly revealed the broad ineffectiveness of Alberta’s (vastly under-resourced) OHS system.

The workers’ response to enforcement also seems to validate the literature (which says enforcement generate compliance). An interesting question is whether an OHS awareness campaign that encouraged citizens to tweet or text reports of unsafe workplaces might be an effective injury reduction tool?


-- Bob Barnetson

Wednesday, March 26, 2014

Suncor's random testing policy gets turned back

An arbitration panel has rejected random alcohol and drug testing by Suncor of workers in safety sensitive positions. This testing would be on top of existing pre-screening and for cause (i.e., reasonable grounds, post-incident and post-rehab) programs as well as an interdiction program with sniffer dogs. 

Approximately 82% of the unionized workforce would be subjected to the random testing. The union grieved on the basis that the program is unjustified, unreasonable and violates workers’ privacy rights, dignity and human rights.

Rather than trying to summarize the 106-page decision, I thought I would just pull out two of the more interest paragraphs that give a flavour of the decision:
[274] Considering all of these factors, and the limitations of the evidence as noted, we cannot conclude that the gains which this Employer would achieve from randomly testing its workforce for alcohol would be sufficient to justify random testing on a balancing of interests approach in view of the evidence which has been offered with respect to the problem in this bargaining unit. 
 [312] As we have discussed, urinalysis does not demonstrate current impairment, It does indicate use, but not the quality, quantity or time or use. Given this evidentiary limitation, evidence of positive tests, without more, does not allow us to conclude that drug use by Suncor employees in the bargaining unit poses a safety risk of such a magnitude that would justify the imposition of random testing for safety sensitive positions. We find that the evidence tendered with respect to drug and alcohol security incidents does not demonstrate a serious drug issue among employees in this bargaining unit. Additionally, although the employer has a sophisticated health and safety system, it did not present this Board with information that would link accident injury and near miss incidents to drug use or abuse. On balance, we do not find random drug testing as proposed by the Employer to be a reasonable policy.
This decision appears broadly consistent with Supreme Court’s recent decision on random alcohol testing (CEP v Irving Pulp & Paper, 2013 SCC 34) which centres on the notion that privacy is a fundamental right and infringement is subject to a balancing of interests proportionality approach.


-- Bob Barnetson

Tuesday, March 18, 2014

Residential construction blitzed again

Minister of Jobs, Skills, Training and Labour Thomas Lukaszuk has announced an(other) OHS inspection blitz of residential construction.
Lukaszuk is putting residential construction, and the framing and roofing industry on notice because they will be targeted for inspection this year. 
“Residential construction will be ramping up their work and we will be performing focused inspection on that industry in particular,” he said. 
“If the ski resorts can do it, I know that they can do it as well. 
“At the end of the day this is not about lowering statistics, this is about mom and dads coming home at the end of a work day, intact, without injuries and without fatalities.”
There is certainly something to targeting residential construction. I’ve taken a quick spin around the neighbourhood on my bike at lunch the last few days and observed five residential construction sites.

Here are a couple of shots from one site, a few days apart. In the first one, the guy is working on the edge of the roof with a 11- or 12-foot fall. He's not wearing any fall protection (the yellow cord is for compressed air to the nail gun) or eye protection. He is using a nail gun to secure joists directly overtop of other workers (they walk rout of the shot before my camera warmed up) who are not even wearing hard hats (there isn’t a hard hat on site or visible in the trucks).


In this second picture, we have guys hanging over the edge of the second storey securing some wrap. A minute before I snapped this shot, one guy had both hands and half his torso out over the edge working. No fall protection—I have yet to see a harness or a rope. Today they are putting up the roof trusses so we’ll see how that goes.


This is pretty typical. Only one of the five sites had any kind of precautions (it was run by a big contractor) like PPE, spotters, controlled access, and decent signage. The rest were awful. The only PPE visible on most sites were steel-toed boots, and even then a couple of guys were in sneakers. 

This isn’t surprising. Those with medium-ishly long memories will note that Lukaszuk targeted the residential construction industry in 2011. Even knowing inspectors were coming, the 387 employers inspected has a 55% violation rate (most places had several violations), including a quarter which had violations serious enough to warrant stop-work or stop-use orders. The lack of fall protection was the biggest issue. Since employers knew inspectors were coming, how compliant do you imagine a worksite is when inspectors aren’t coming around?

I’m all for inspections. But my growing sense is that inspection blitzes are bread and circuses. They create good media stories (“we’re kicking unsafe ass, boys”) while distracting from commonplace and widespread non-compliance. This reflects that (1) there is virtually no chance of getting caught violating OHS provisions and (2) if you do get caught there are no penalties.

-- Bob Barnetson




Monday, March 10, 2014

Alberta's Employment Standards Review

A week or so ago, the government announced it would be soliciting feedback on the Employment Standards Code. You can fill-in a survey or make a written submission. Below is the submission I made to Minister of Jobs, Skills, Training and Labour Thomas Lukaszuk:

7 March 2014

Minister Lukaszuk:

Thank you for the opportunity to provide feedback on Alberta’s Employment Standards Code.

Enforcement
While this review appears to centre on legislative change, the most pressing issue in contemporary employment standards is the enforcement (or, more accurately, the non-enforcement) of these standards. Alberta relies primarily on complaints to trigger enforcement. Unfortunately, it is widely accepted that complaint-driven enforcement reveals only a minority of violations (Thomas 2009, Arthurs 2006, Ontario 2004, Adams 1987).

There are a number of reasons for the ineffectiveness of complaint-based enforcement. Workers may choose not to complain based on fear of employment repercussions, ignorance, a lack of self-efficacy, and/or the belief that there is little hope of effective remedy (Weil and Pyles 2005). The effect of relying on complaint-based enforcement is that is creates a culture of noncompliance, wherein workers will complain less even as violations increase (Weil 2012).

It is difficult to know the true rate of employer non-compliance in Alberta because your department does a poor job of reporting employment standards statistics. Where there is data available (typically from opposition party FOIP requests) it shows a high degree of non-compliance. For example, March 2009 data about (the seemingly now defunct) targeted inspections of employers employing temporary foreign workers found 56% of employers in 363 workplaces were in contravention of the Code. Over $1.3m in unpaid wages were returned to these workers (Alberta 2009). January 2010 data on 325 inspections shows non-compliance to be at an astounding 74% (Alberta 2010).

Clearly there is a widespread problem with non-compliance. While you have previous characterizes this data as a “really good news story” (CBC 2010), presumably because it suggests that some workers do complain, if you actually look at your data, you will note that only a minority of the violations found came from complaints. This suggests that non-reporting of employer wage theft (and other employment standards violations) is a significant issue that complaint-based enforcement does not effectively address.

While legislative change (see below) may offer some improvement, the fundamental enforcement issues are two:
  1. There are not enough employment standards inspectors to cover even a fraction of Alberta’s 140,000-odd employers. Effectively, there is no chance an employer will get caught violating the Employment Standards Code.
  2. Should an employer get caught violating the Employment Standards Code, the only likely penalty is having to pay back some portion (but likely not all—see below) of any wages found owing (plus a small surcharge to the government).
The government virtually never prosecutes violators. The successful prosecution I can think of was Domo Gas in 2002 or 2003—maybe there was a more recent one from Klondike Days? And indeed, non-monetary violations (e.g., illegal child employment, excessive hours) are “remedied” with an order to stop the behaviour (but not other penalty). In these circumstances, is it any wonder that non-compliance is rampant? The solution is (1) more inspectors and (2) real penalties for non-compliance.

Child Labour
Alberta presently allows adolescents (12-14) to work in four jobs (delivery of small wares, office clerk or messenger, retail store clerk, newspaper or flyer delivery) as well as any job approved by the Director of Employment Standards. At present, certain jobs in the restaurant or food services industry are considered “approved” occupations (basically anything except cutty, burny, boozy work), contingent upon parental permission and a completion of hazard checklist. Your consultation document floats the idea of expanding the list of named jobs in the legislation to include limited retail sales, limited restaurants and food services, light cleaning or janitorial, and movie theatre ushers and cleaners.

It is important to recognize that Alberta employers frequently violate the existing rules regulating the employment of adolescents. It is difficult to tell how widespread the issue is because your department has not released data on, for example, its targeted inspections program for young workers (which I understand has been discontinued). There is some analogous data on occupational health and safety violations from a 2011 inspection blitz that suggests 69% of employers had exposed workers between ages 15 and 24 to safety violations even though they knew inspectors were coming out (Alberta 2011a). Perhaps your department has some data it could release to clarify rates of illegal child labour from random inspections?

There is some non-governmental data on this point (Barnetson 2009, 2010). In the past, you have, rather cavalierly, dismissed this data instead of looking into it (Alberta 2011b). More recent research further substantiates these concerns about illegality (Barnetson 2013a, 2013b). For example, data from the 2012/13 suggests 44.4% of employed adolescents surveyed were in occupations of questionable legality and 25.4% were in clearly illegal occupations (Barnetson 2013b). This level of illegality is likely related to the non-enforcement of employment standards and potentially jeopardizes the physical, intellectual and moral development of adolescents (which is the rationale for regulation as set out in the Employment Standards Code).

This concern about the negative impact of work is more than merely handwringing. In 2012/13, 52.9% of employed adolescents surveyed reported at least one work-related injury in the previous year and the majority of those reporting injuries reported multiple forms of injury (Barnetson, 2013b). These included lacerations, sprains, bruises, burns, fractures, and chemical or biological exposures causing injury. Reporting (to parents, employers or the WCB) ran at roughly 50%. Here are some of adolescents’ comments about their employment from several years of data:

  • I got eczema due to the chemicals they use to wash tables. (14-year-old female) 
  • We had to move the really big pigs to other units. That was tough work. We could easily have gotten trapped and run down from the pigs. (14-year-old male) 
  • I had a 60 some year old guy come into the carwash and I helped him and once he was paying and walking out he said “Thank you.” I said “you’re welcome.” He then surprised me and said “I could help you pull down your pants.” (14-year-old female) 
  • My employer didn’t pay me on time (and) failed to give me or my coworkers breaks. (14-year-old female)
  • Nail gun to the foot. (13-year-old male)
  • I work at my grampa’s farm and workplace. I was too young to use big equipment. (12-year-old male) 
  • I quit because my supervisors were drinking on the job and leaving me to work the kitchen which I wasn’t legally allowed to be in. (grade-10 female)
  • We had no gloves for pulling out poison ivy. (13-year-old male)
  • I fell off a ladder, twisted my ankle pretty bad. But my boss didn’t do anything. (14-year-old female)
  • I got told by an employee that everyone does drugs and if I told anyone I would not be allowed to work there in future. (14-year-old female)
  • I got knocked out by a t-bar lift. (14-year-old male)
  • I got attacked by a dog. (12-year-old)
  • When I do my paper route there is a man who is always following and watching me. I went to the (employer) and asked for a different route. (12-year-old male)
  • I was at work and one of the older men followed me to the washroom and tickled me then reached up under my shirt and grabbed my boob. I did nothing because I was only nine, so who would have listened to me. (16-year-old female).
While many people view adolescent employment as character building, it is important to recognize employment also entails exposing adolescents to a variety of hazards. Your suggestion that the Employment Standards Code could be amended to include limited work in restaurant and food services, light cleaning or janitorial work and work as movie theatre ushers and cleaners is deeply concerning and ought to be avoided.

Adolescents can presently perform limited duties in restaurants, contingent upon the employer obtaining and filing with the department parental consent forms and hazard checklists. Moving this work to the list of permitted occupations in the Code would eliminate the need for parental consent and the hazard checklist. My research on teenage workers leads me to believe that (1) that few employers acquire or file these documents and (2) your department does nothing with them. That said, employer non-compliance is no basis upon which to eliminate this requirement; indeed, it suggests the need for greater vigilance and enforcement by the government. Why would you loosen the laws when employers are demonstrably non-compliant with them?

Light cleaning and janitorial services expose adolescents to a host of new workplace hazards. These include physical hazards (e.g., heavy lifting, repetitive motions, slippery surfaces) as well as chemical and biological hazards. While the proposed wording suggests the work would be limited to “light” duties, many of these hazards exist in so-called light cleaning. Further, the absence of enforcement of employment standards means that many employers will likely ignore that “light” nature of the work. Not to put too fine of a point on this, but how are you going to feel when the first kid is discovered asphyxiated in the janitorial closet of a theatre or nursing home after s/he mixes bleach and Mr. Clean and produces mustard gas because you loosened the rules on child labour?

If you were looking to make meaningful change in the employment of adolescents and young people, you could (1) actually enforce the existing law and (2) increase the minimum age of employment from 12 to 13. During the last consultation on the Employment Standards Code in 2005, 56.5 per cent of employers and 50.2 per cent of employees believe that 12-year-olds were too young to be employed.

Work Permits 
Permitting means an unelected official (the Director of Employment Standards) can allow an employer to offer employment terms and conditions worse than the minimum terms and conditions of employment established by the legislature. There is no need for this (shouldn’t minimums apply to everyone?). It also places the Director of Employment Standards in a difficult position: s/he must balance the public interest in uniform minimums with political pressure that well connected employers may exert (or potentially exert) to the detriment of the Director’s career. Why would you allow such a situation to continue?

Internships
The current definition of employee is someone who receives or is entitled to receive a wage. This definition allows employers to have work done by interns, whose lack of a wage means they fall outside the ambit of the Code. This creates a significant opportunity for exploitation in cases where an internship is viewed as a stepping stone to subsequent employment. For example, an unpaid St. Albert intern died as a result of a motor vehicle accident that appears to have been caused by working 16-hour shifts at a local radio station (CBC 2013). While this case falls in the federal jurisdiction, Alberta’s laws would permit this same tragedy. Altering the scope of the Employment Standards Code such that it applies to unpaid internships seems like a decent thing to do.

Hours of Work and Breaks
At present, the Employment Standards Code permits workdays as long as 12 hours with 30-minute rest breaks after each 5 hours and overtime pay due after 8 hours. From a workers’ perspective, these minimums are awful. Now “awful” is a pretty subjective term so allow me to propose an experiment that would allow you to draw your own conclusion.
  1. Do hard labour for five hours. Twitter fights and chicken dinners don’t count. Maybe dig a ditch. Or wait tables in high heels (please tweet pictures of this… but only during your breaks). 
  2. Take a 30-minutes to pee and eat and rest (if your employer lets you). 
  3. Then work another 5 hours. 
  4. Then take another 30 minutes to yourself. 
  5. Now work another hour (which brings you to 12 hours).
How are your feet and back feeling? Ready to go home and make dinner for the kids? Then back to do it again tomorrow? And the next day? And the day after that?

Since you earned the minimum wage of $9.95 (but not for the breaks—they were unpaid) you brought home (before deductions but including some OT) a whole $125 (assuming there were no illegal deductions). What a deal! Good thing you are too tired to take the kids to dance or soccer, because you can’t afford that anyhow.

If you look at, say, Ontario, they limit work to eight hours in a day (except in unusual circumstances). They also give workers a period of at least 8 hours between shifts and 11 consecutive hours off work each day (applicable when workers work split shifts). This radically reduces the amount of overtime workers can be compelled to work by their employer. There are good public policy reasons for limiting the normal hours of work to eight (e.g., health and safety, family responsibilities, community contributions). The only reason to allow longer hours is to allow employers to avoid hiring more staff and save some money.

Leaves
It seems to me that the Employment Standards Code is designed to simplify the lives of employees and employers by outlining clear requirements and providing an easily accessible avenue by which to resolve disputes about them. If that is the case, then the Code should provide for leaves when such leaves are involuntary (e.g., jury duty) or when the employer is obligated via another piece of legislation to accommodate the worker (e.g., human rights obligation to accommodate illness). Make it clear so there are no misunderstandings.

General Holidays and Pay
Have a look at the flow chart here and tell me this couldn’t be a bit simpler: . One way to simplify it is to eliminate the “employee eligibility” requirements. In addition to working for 30 days or more before the general holiday, the Code currently requires workers to work their scheduled shift before and after a general holiday in order to be eligible for general holiday pay.

The most likely explanation for this requirement is that the government was seeking to help employers discipline workers who might be inclined to extend their time away from work by not reporting for a shift before or after the general holiday (those damned lazy workers…). Employers have a number of tools for addressing unexcused absenteeism. There is no need for government to buttress employer power in this regard. Eliminating these requirements would be a step towards simplifying this portion of the Code.

Domestic and Farm Workers
The Employment Standards Code and regulation include exclusions affecting domestic and farm and ranch workers. The Code excludes domestic employees from the provisions around hours of work, overtime, rest periods and days of rest. There is no good reason to deny these rights to domestic workers.

Should employers be allowed to force domestic workers to work longer than 12 hours in a day? Should employers not have to pay domestics overtime if they compel domestics to work longer than 8 hours in a day? Do domestics not need rest breaks—to pee or eat or just sit the hell down for a minute? Do domestics not deserve one day of rest each week?

Given that domestic workers are frequently non-citizens who rely upon their employer for their continued residency in Canada, are socially isolated and may face language barriers and thus are unlikely to complain about violations, its seems unfair to compound their vulnerability by giving them fewer rights than other workers.

Farm and ranch workers are excluded from statutory requirements around hours of work, overtime, vacations, child labour and minimum wage. I was disappointed you didn’t ask about including farm workers. There is no compelling reason for these exclusions except to help farmers—who are political important to your government’s (fading) re-election chances—save money.

Of particular concern is waiving the child labour provisions. In practice, this means that farmers can (and do) have 10-year-olds work with or around machinery, livestock and chemicals. Since Alberta also excludes farms and ranches from the ambit of its Occupational Health and Safety Act, this employment standards exclusion sanctions farmers exposing children to these well documented hazards for children on farms. Why would any government allow that to happen? I’d like to point you to an example of a child’s injury or death, but your government doesn’t investigate those.

Penalties
Increasing fines for non-compliance makes sense when continued levels of non-compliance (which do appear high) suggest that existing penalties are not acting as a deterrent.

Yet, is that the case here?

As I noted above, there is virtually no chance of employers getting caught and, when they are caught, they must only repay a portion (see below) of any wages incorrectly withheld. I cannot recall anyone being was successfully prosecuted under the Employment Standards Code since Domo Gas in 2002 or 2003.

The lack of prosecution suggests the issue is not the level of the fines but, in fact, the government’s unwillingness to prosecute employers who violate the law. In this situation, progressive penalties are just window dressing: they make the government look tough on violators when it really just turns a blind eye to them.

An analogous situation is the creation of administrative fines and ticketing in OHS. While these penalties were enacted in October of 2013 and January of 2014 respectively, no penalties have yet been enacted. And, in a year with a near-record 188 fatalities, prosecutions (five in total) dropped to an all-time low. It seems to me that the solution here is not legislative change, but actually enforcing the legislation you enacted.

Appeals
There is unevenness in how the Employment Standards Code handles appeals. Workers dissatisfied with a decision that they are not entitled to earnings or that a complaint is not accepted may appeal to the Director of Employment Standards (s.88). The Director’s decision is final. Yet an employer that is served with an order to pay wages is entitled to appeal to an umpire (in practice, a provincial court judge). There is no clear reason for allowing an employer to access to an independent appeal body on a wage issue while workers are limited to asking the Director of the unit that made the decision to review it.

Recovery of Earnings
It is broadly accepted that the majority of wage theft complaints are made by workers whose employment has been terminated (Arthurs 2006, Adams 1987). This reflects worker fear of repercussions if they complain about wage theft while they are employed. Sure, retaliation is illegal. But workers aren’t dumb: they know the government won’t do anything about that so they leave wage theft to be resolved after they quit or are fired.

Section 90 of the Code imposes a number of time limitations on the recovery of wages that are unfair to workers. Specifically, there is a one-year limit on orders. Further, orders on unpaid wages may only go 6 months from the date of termination or the date of the order (whichever comes first).

In practice, what this means is that, if I quit and complain, the order can only go back 6 months from the date I quit, even though the employer may well have cheated me out of overtime for three years. That hardly seems fair or consistent with the notion that there a minimum terms and conditions of employment.

On the other hand, if I complain while I’m still working for an employer, then the order can only go six months from the date of the order. Of course, orders only come after an investigation has been launched and the officer draws a conclusion. If my employer remedies the wage theft going forward from the date when the complaint is filed and then stalls the investigation, the employer is able to delay the issuance of an order. Each day of delay reduces the amount of money that I can recover because the six-month period does not crystallize until the order is issued. The simple solution here is (1) any dates should be from the date of complaint and (2) there should be no time limit on how far one can go back.

A review of your website indicates approximately 3700 open orders on unpaid wages (ranging from $22 to $211,921 in value). This suggests that there is significant scope for improvements in the recovery of unpaid wages. Whether this requires legislative change or simply much more aggressive application of the existing rules around director liability is unclear.

Conclusion
I’ll leave you with two thoughts. 

First, if you are truly reluctant to enforce the employment laws you passed (which is negligent and deceitful), you could simply make it easier for workers to join unions in Alberta. This would externalize the cost of enforcement in unionized workplaces to the unions via the grievance arbitration process. Since unionized workplace appear to also be safer than non-unionized workplaces, such a change might also reduce the number of injuries in Alberta each year.

Second, I’m currently doing interviews with academics and activists about Alberta’s child labour laws. Each of the seven experts I have interviewed has spontaneously volunteered that they expect the only thing that would motivate meaningful enforcement of Alberta’s child labours by your government is the death of one or more children while at work. I hope you will prove these experts wrong.

I hope you find this feedback helpful. If you would like to discuss any of these matters further, please feel free to contact me at barnetso@athabascau.ca .

Sincerely,

Bob Barnetson, PhD
Associate Professor of Labour Relations
Athabasca University

References

Adams, R. (1987). Employment standards in Ontario: An industrial relations systems analysis. Industrial relations/Relations industrielles. 42(4): 46-64.

Alberta. (2009). TFW Monthly Activity and Status Report, March 31, 2009.

Alberta. (2010). TFW Monthly Activity and Status Report, January 31, 2010.

Alberta. (2011a). Focused inspection project: Young workers. July 5, 2011. http://work.alberta.ca/documents/Focused-Inspection-Project-Young-Workers.pdf

Alberta. (2011b). 21 April 2011, Thomas Lukaszuk, PC. pp. 810-1.

Arthurs, H. (2006). Fairness at work: Federal labour standards for the 21st century. Ottawa: Labour Standards Review Commission.

Barnetson, B. (2009). The regulation of child and adolescent employment in Canada. Just labour 13: 29-47.
Barnetson, B. (2010). Effectiveness of complaint-driven regulation of child labour in Alberta. Just labour. 16: 9-24.
Barnetson, B. (2013a). Incidence of work and workplace injury among Alberta teens. Just labour. 20: 14-32.
Barnetson, B. (2013b). Incidence of work and workplace injury among Alberta teens, 2012/13. Edmonton: Alberta Workers Health Centre.

CBC. (2010, March 17). Temporary foreign workers treated poorly, NDP charges. http://www.cbc.ca/news/canada/edmonton/temporary-foreign-workers-treated-poorly-ndp-charges-1.920847

CBC. (2013, September 9). Intern’s death after overnight shift sparks outcry. http://www.cbc.ca/news/canada/british-columbia/intern-s-death-after-overnight-shift-sparks-outcry-1.1704532

Ontario. (2004). Annual report of the Auditor General. Toronto, Auditor General.

Thomas, M. (2009). Regulating flexibility: The political economy of employment standards. Montreal: McGill-Queen’s University Press.

Weil, D. (2012). ‘Broken windows,” vulnerable workers and the future of worker representation. The Forum: Labour in American politics. 10(1): Article 9.

Weil, D. and Pyles, A. (2005). Why complain? Complaints, compliance and the problem of enforcement in the US workplace. Comparative labor law & policy journal. 27(1): 59-92.


Thursday, March 6, 2014

Thomas Lukaszuk and the 1%

Minister of Jobs, Skills, Training and Labour Thomas Lukaszuk recently gave an interview to the Cold Lake Sun. On occupational health and safety, the Sun reports:
The minister noted while much work has been done on safe and fair workplaces, he wants to see “a culture of safety” implemented via education and, if necessary, enforcement. 
“Ninety-nine per cent of our employers are exemplary, but there’s always that one per cent,” he noted.
There are two difficulties with this statement. 

First, 99% of employers are not exemplary. While the government has released fewer and fewer safety stats over the years (for example, the last inspection data available is from 2009!), we do have more recent data from inspection blitzes in 2010, 2011 and 2013:


Clearly it is not 1% of employers who are bad actors—the majority of these employers are non-compliant. Some noncompliance is pretty minor (paperwork issues) but a lot os very significant and poses immediate hazards to life and limb.

Lukaszuk knows this. In 2010, he was “disgusted” by employer non-compliance, telling the CBC:
"The hammer is coming down in Alberta and if we continue seeing numbers like these, the hammer simply will be getting bigger and bigger," he said. "I take this very seriously and I expect that this will be a wakeup call."
Fast-forward four years and, despite more talk about a hammer coming down, fatalities are at an all-time high, prosecutions at an all-time low and the province’s new fines are clearly a paper tiger. 

The real question here is why is Lukaszuk misrepresenting employers’ degree of compliance with the OHS Code? 

Did Lukaszuk forget about the inspections that so incensed him in 2010 and 2011? Or did he forget about the ever-growing fatality numbers he railed against in early February of 2014?

Or is there another agenda at work here?

My guess is that politicians are very uncomfortable about workplace injuries and deaths. Yet they are also uncomfortable sending inspectors to worksites (which are often owned by Tory supporters). 

If confronted with bad news, they will rail against employers maiming and killing voters. But absent such news, they tend to dole out sunshine and lollipops in the hopes everyone will forget the workers who die each year.

The second difficulty with Lukaszuk’s statement is that education clearly doesn’t work. The government has been educating (in lieu of enforcement) since 1995 and fatality rates (about the best proxy we have for safety in Alberta) keep going up. There is no good reason to think education is going to be effective.

Education is a favourite remedy for Tory MLAs because it places the blame for injuries on workers (who apparently need education), sounds enlightened and makes few demands of employers. This is, however, likely cold comfort to the family and friends of the at least 188 Albertans who died last year as a result of their job.

-- Bob Barnetson

Friday, February 28, 2014

Two protests in the next few days

Over the next few days, there are a couple of interesting labour-related events in Edmonton. On Sunday, March 2, there will be a protest at Winston Churchill Square over the government’s recent attack on public-sector pensions.


On Monday, March 3 the group Canadians Against the Temporary Foreign Worker Program will be hosting a protest at the Legislature reflecting ponds at 9 am. The Legislature steps are apparently booked for the same time for something official, which could make for an interesting collision of messages.


As far as I can tell, CATFWP is a grassroots group of folks who are concerned about the erosion of job security and working conditions given employers’ greater ability to replace Canadian workers with foreign migrants. There also appears to be some folks concerned about the treatment of foreign workers with a very slight leavening of xenophobes. Quite an interesting Facebook group to follow.


-- Bob Barnetson