Tuesday, June 19, 2012

Farm Workers' Union makes interesting argument

I’m reading a new book about the Fraser case (farm worker organizing) by Fay Faraday, Judy Fudge and Eric Tucker and quite enjoying it. Perhaps a quick run down will follow as I get further into the book.cCoincidentally, I got an email from the Alberta Farm Workers' Union (FWU) on Friday. 

They note that Bill C-45 (the Westray amendment to the Criminal Code) is slowly (very slowly) becoming more widely known and (gasp!) used in Canada to prosecute employers for worker fatalities. Indeed, a construction company in Ontario has just pleaded guilty to one charge of criminal negligence causing the death of four workers who died on Christmas Eve, 2009. At the same time, the President of the company pleaded guilty to four charges. Sentencing is still underway but the dollar values are much higher than in previous cases. 

But back to the FWU’s press release. The crux of their message is that, because most farms and ranches are excluded from the ambit of the Occupational Health and Safety Act, these employers are more likely to face charges under the Criminal Code for worker deaths than employers who are covered by the OSHA (who are typically prosecuted under its provisions in Alberta). Similarly, most farms operate without the liability shield that (presently optional) workers’ compensation coverage would give them thus they may face civil suits for farm workers deaths.

The FWU goes on to suggest that it is in the interests of farmers to work with the government towards the inclusion of farms and ranches in the OHSA to reduce the risks associated with criminal prosecution. The FWU also appears to be suggesting that farmers cooperate with efforts to extend mandatory WCB coverage to farms to reduce the risk of civil suits for injuries.

This press release is fascinating on three levels.

First, the argument put forward by the FWU is more savvy than their previous efforts. They are attempting to lessen resistance among rural communities to extending basic workplace rights to farm workers by making an economic argument farmers may agree with. The timing is good, because (1) the premier appears to be progressive and not as tightly wed to the old boy network in Alberta (although time will tell) and (2) the policy salience of the rural vote just declined because so much of the south went Wild Rose in the recent election. So good on the FWU.

Second, the FWU’s argument is basically that a farmer should seek to hide from a big Criminal Code fine for killing a worker by locking into the low-fine/no-prosecution regime of the OHSA. That is to say, Alberta’s OHS record suggests it is cheaper to kill workers under it than under the Criminal Code.

Wow, what an argument. 

It is not often a labour group adopts such a blunt cost-benefit analysis when discussing worker fatalities. This is not to say the FWU is wrong—the financial risks associated with OHSA prosecutions are very small while the risks under the Criminal Code are basically unknown in Alberta. Compounded with the risks associated with a civil suit, and coverage under workers’ compensation and OHS starts to look pretty good if you are risk-averse. But wow, what an argument.

Third, the FWU is suggesting that prosecution under the Criminal Code is a real possibility in Alberta.
“(Bill C-45) has now arrived in Alberta. The Alberta Federation of Labour has written an open letter to Alberta's Justice Minister, the Honourable Jonathan Denis advising of the existence of this law. I had an opportunity May 30 2012 to sit down with Alberta's Justice Minister in his office and discuss at length and in some detail C-45 and it's impact on the Alberta Ag industry. The Minister of Justice then was asked on the floor of the House during QP about C-45 and the Alberta Ag industry and he stated " Let me assure this House that my ministry doesn't hesitate to pursue criminal charges where the investigation indicates that it is warranted" (Hansard May 31 2012 pg 127)”
On the one hand, it is nice to see the Minister of Justice agreeing that prosecution in an option when warranted. On the other hand, the history of prosecutions for workplace deaths in Alberta is pretty dismal with few prosecutions compared to other jurisdictions

Is it realistic to expect Alberta will suddenly start prosecuting under a 2004 amendment to the Criminal Code when they’ve show little appetite to prosecute under the OHSA all these years?

-- Bob Barnetson

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