Tuesday, July 5, 2016

Bill 6: Take it up with the government...

The government’s consultations on Bill 6 (which granted farm workers access to basic employment rights) will continue through the summer. One of the working groups is discussing in what way (or to what degree) the Employment Standards Code ought to apply to paid employment on farms. Until this consultation process wraps up, Employment Standards don’t apply to farm workers.

There is significant opposition among many farmers to many of the workplace rules outlined in the Employment Standards Code. How, ask some farmers, are you going to apply maximum hours of work during a grain harvest when bad weather threatens the crop? (The assumption underlying this particular question is that saving the crop is more important that the health and safety of the paid workers.)

Since this is an area of interest to me, I follow a number of discussion groups where most posters are opposed to Bill 6. Last week there was an interesting note posted by an administrator in one of the groups saying (and I’m paraphrasing since the group is private) “we won’t be posting specifics of employment disputes between workers and farmers; those disputes should be addressed with the appropriate government agency.”

A private discussion group can most certainly have whatever content rules it wants. The interesting thing here is that a moderator of a group sharply opposed to government intervention in farm employment practices suggesting that employment disputes should be resolved… by seeking help from the government (which is, due to the opposition of farmers, not at presently available).

I very gently pointed this out (I try to minimize my posts to providing information), noting that the continuing exclusion of farm workers from the Employment Standards Code means that, when there are disputes, the resolution options available to workers basically boil down to suing or shaming (that latter, I assume, being the intent of the workers who wanted to reveal disputes on the group).

One (unstated) implication is that placing farm workers under the ambit of the Employment Standards Code provides a low cost and relatively quick way to resolve such disputes. There was, shall we say, “limited interest” in this perspective among those discussion group members who responded. This discussion thread has since been deleted by the moderators.

Yet the reflexive “let the government fix it” nature of the original post strikes me as somehow important. Despite the opposition to Bill 6, deep down, is there an undercurrent of “let the government fix it” when sticky issues arise?

It will be interesting to see the degree to which Bill changes are accepted over time. Thinking back to the late 1980s, many Alberta farmers were vehemently opposed to mandatory seat belt laws. Resistance to that has faded. Perhaps we’ll see a similar trajectory with employment rights for farm workers?

-- Bob Barnetson


  1. So what are farmers suppose to do when the maximum hours are exceeded and the crop needs to come in?

    1. Assuming the problem cannot be avoided by spreading the harvesting period out slightly, one solution would be to hire an adequate number of workers such that they could be employed in shifts without any one worker exceeding whatever the maximum number of hours might be.

    2. In Alberta it is a save assumption that the harvest period cannot be spread out even slightly. It was and still is also almost impossible to find temporary help capable of running machines such as combines, tractors etc.. I can only guess you have never tried to run a farm....

    3. If "the crop needs to come in (weather, etc.), every farmer in the area will be under the same pressure. Finding people is not necessarily simple.

      Also, when you talk of "saving the crop is more important that the health and safety of the paid workers" remember that not saving the crop may very well have a significant impact on the health and safety of the farm family, not just ths year, but for years to come. We are not (usually) talking about some large corporation making sure share prices keep going up. Rather, we are talking about a family (usually) who will either make money to put food on the table or not.

      I am not saying that no law is needed. Perhaps it is. But Bill 6 is a poorly thought out, rushed together law that will hurt Alberta.

  2. It is highly unlikely that it would be practical to spread out the harvest period if you are using outdoor agriculture. (we're involved in Controlled Indoor Agriculture so the issues are different). The solution to hire an adequate number of workers suggests a combination of economic issues (eg. price for product versus cost of production) and training issues (eg. experience operating a combine, or large truck) for multiple people over a very short time period once per year. This is not a problem if they type of harvesting is simple manual labour, unfortunately in Alberta I suspect that is limited. I would also imagine that a family farm labour may also be problematic. For instance, if I ran a farm and had a twelve year old child that was paid to care for the cows and that task ran outside the acceptable working hours would I as the employee not be breaking the law? Is it only within the law if the child is not paid?

  3. Continuing from the last comment, I should point out that we pay our children for work. Would the regulations then disallow this type of reward for their hard work because they are family members?

    Since a portion of the concerns are economic, to support worker safety would you support government transfer payments, say at the level of living wage to farm workers so that farmers contributions can be redirected to OHS?

    1. Thanks for your note. I expect there will be challenges associated with securing an adequate number of workers when work is seasonal and compressed and there will also be cost issues associated with this.

      Let’s deal with the costs first. Additional workers would entail additional labour costs. Forcing a smaller number of workers to work longer also entails costs—but these costs are borne by the workers themselves in the form of less safe work and (potentially) injuries. As a society, we’ve determined that externalizing costs onto workers this way is unacceptable (hence hours of work legislation).

      Agriculture has had an exception to these rules. If the government decides to apply the hours of work rules from the Employment Standards Code to farms (which seems like the morally correct decision), farms will need to comply. And, if this entails hiring additional workers, farms will need to absorb the costs of doing so (just like every other business).

      The availability of adequately skilled labour affects all seasonal industries. Attracting an adequate pool of workers (especially during a time of intense competition for workers) may require farmers to make work more attractive (e.g., increase wages, collaborate with other producers to pool or share labour). This may have the effect of expanding the labour pool by attracting workers who are unwilling to work given prevailing wage rates and working conditions.

      Farmers may also adopt other strategies to cope with these rules (e.g., further mechanization, adopting different product mixes, hiring out harvesting, using whatever family-labour loopholes that may exist when the application of the Employment Standards Code is sorted).

      The issue of children working on farms is complex and further muddied by the government’s decision to exempt family members from the ambit of portions of Bill 6. It is hard to know what the rules around child labour will look like, especially in regard to unpaid work and/or work by family members.

      Personally, I think paying children for work that provides economic value is the right thing to do if the work would otherwise have to be hired out. That said, I question the degree to which children (particularly the 12-year-old in your example) should be performing any work on farms given (1) the dangerous nature of agricultural work (recognizing that some tasks are more or less dangerous than others) and (2) the greater vulnerability of children to harm given their physical and intellectual immaturity.

      To me, it seems inconsistent to (for example) prohibit a 12-year-old from working in gas stations (which are risky workplaces) but allow the same kid to run a tractor or handle livestock or work around chemicals on a farm. Whether the government finds that argument persuasive when it decides on the application of child labour laws to farms is unclear.

      On your question about whether I support government transfers to farms such that farmers can afford to operate safety, my initial reaction is no. Farmers are employers and, like all employers, should be obligated to operate safely. If a farm cannot afford to operate safety, then that farm is likely not economically viable. (That said, farmers should be eligible for whatever safety programs exist for other employers.)

  4. Interesting points. I take issue with your assumption that the standards that exist in the Employment Standards Code are actually appropriate to farms and applying inappropriate standards is somehow moral.

    When I was twelve I worked with and around equipment. The implication of what you are saying is that my children should not have those same opportunities. This same could be said to be true for farmers, and under the guise of OHS you devastate their way of life.

    I think I was unclear with my point on transfers of a living wage. I am not suggesting this goes to the farmer or it's entity as this would be no different than bailouts of banks or automobile companies, which I disagree with, and it is unlikely to get to the workers. I am suggesting this goes directly to the worker. Much of the control of workers is based on the ability to deny compensation needed for food and shelter. I am suggesting eliminating that so workers are protected, and the resources that previously went to the workers can be spent on OHS and other benefits to recruit appropriate workers. This ensures workers have the means to subsist with or without that particular job, because even AU coursework identifies examples where safety is compromised on the worksite while staying within the OHS rules.

    Personally, I currently subscribe to this across all occupations, it just would be really useful in the farming context. Although, I still think the Employment Standards Code should take into account farming hazards.

    1. Thanks kindly for your note. Certainly the “farming as a way of life” argument has wide currency. Take your statement:

      “When I was twelve I worked with and around equipment. The implication of what you are saying is that my children should not have those same opportunities.”

      Now strip away a bit of the context:

      “When I was twelve I . The implication of what you are saying is that my children should not have those same opportunities.””

      Does this still sound like a good idea?

      When I was a kid, there were no seat belt laws. That doesn’t justify not buckling up my kid (or myself!). And many historical patterns have gone by the wayside (e.g., kids in coal mines, kids in factories) as it has become apparent that these activities tend to result in unacceptable outcomes.

      In the end, I think questioning whether something is safe for children (or appropriate for other workers) is a more compelling line of argument than appealing to historical practices.

      I apologize for misunderstanding your earlier point about government involvement in a living wage. So as I understand your suggestion now, it is (1) the state pays farm-workers wages in return for (2) farmers investing the saved wages in safety upgrades? (apologies if I have again misconstrued this).

      It is an interesting idea but I wonder (1) why should the taxpayer subsidize farm labour costs, and (2) how would the state ensure farmers paid for additional safety upgrades with the saved wages? But perhaps I am again misunderstanding your point (it is early and I am only one cup of coffee in).

  5. I agree with your point that historical practices are not a good argument for continuation. I still maintain that practices need to be appropriate for the industry and as a society we need to recognize both costs and benefits of regulations. Sometimes regulations are just too cumbersome to accomplish the behaviours we want and we need to take a different approach.

    I would clarify this as (1) the government provides transfer payments set a living wage to the workers (2) farms are subject to OHS regulations that take farming realities into account.

    (1) The taxpayer should subsidize labour costs because
    a) food security. If 81% of our produce is imported the public is at risk due to transportation interruptions.
    b) lower costs for food to the public. Changes in current impact the cost of food and decreases the cost of local produce.
    c) all of the arguments for a living wage for the worker.
    d) currently taxpayers subsidize a variety of businesses, I argue if we are subsidizing anyone it should be the individuals not businesses.
    e) this takes some of the premises of Keynesians economics in using transfer payments that circulate in an economy while using ideas of Hayek in reduced centralized planning and freedom of choice.
    f) using local produce reduces transportation costs in Green House Gas emissions as well as infrastructure costs.
    2) Farmers would be under Employment Standards but more importantly the worker has the ability to pursue other work if the farm is unsafe.

    I am a proponent of a living wage transfer payments to the worker providing the legal entity that employs the worker agrees to something like the 1:6 or 1:8 compensation ranges like Mondragon Cooperative. That is where the compensation of the highest paid person is no more than 6 (or 8) times that of the lowest paid person. This should help with societal issues and ensure that those working fulltime can actually make a living. I suspect it would have a significant impact on management of retail and hospital sectors because of their high reliance on minimum and low wage employees.

  6. When viewed from the perspective of statistics, many of the advocates of Bill 6 appear to have reasonable perspectives. Here's some additional statistics for you. In 2011, 81% of farms in Canada were family-owned operations. Most farming injuries and deaths across Canada occur to the farmer or his immediate family, and by far the largest are due to equipment roll-over, and inadequate seat-belt usage, followed by machine entanglement. A few simple, industry-wide regulatory changes with respect to mandatory tractor rollover protection and seat belt usage could drop this industry from a leading source of injury to somewhere far lower on the radar. Given that, and given that many of farmers' concerns are reasonable, why do we focus on issues not relevant to the key safety problems? Many farmers work under production quotas. Many have relatively little control over sale prices for products. The only thing they have control over is their input costs. In 2005, 45% of Canadian farms were operating at a loss. This does not bespeak an industry with high margins, raking in profits at the expense of safety. This speaks of an industry scraping by through sheer luck in many cases, selling to a fixed market, with variable input costs. In other provinces, regulations and legislation were introduced over a period of several decades, and it is a false statement that every Canadian province has such regulation. Nor are they consistent, and in many respects the proposed Alberta legislation goes above and beyond what other heavily agricultural provinces mandate, and impose unfair competitive barriers to the survival of the local industry and its ability to support the workforce. Farming provides the key to local food supply certainty, and absolutely should receive a higher priority than it does in governmental consideration of industry, but the legislation imposed is equivalent to telling you that tomorrow, there will be new rules for how you operate your car, and if you fail to follow them, you will be fined $10,000 / day or your car will be removed, and that the government will tell you what those rules are in a year or two, but in the mean-time, they're in effect. Good luck getting the general population to receive that well. Perhaps this data set makes more sense to you.

    1. Thanks kindly for your note, Unknown. I have broken my response into two pieces because of comment function limitations in Blogger.

      Yes, I’m familiar with the ownership and injury stats. I agree, there are major gains to made through engineering controls. I’m less optimistic about the effectiveness of PPE (since it depends on usage and does not eliminate or structurally control the hazard). Given how long most equipment remains in service on farms, I think retrofitting is more likely to be effective than further manufacturing standards (although I’m not averse to those). These are changes farmers could make for the safety of their families.

      I don’t agree that the Bill 6 changes are not relevant to key safety problems. Bill 6 focuses on the safety of non-family employees. Employees generally have little power to determine the terms and conditions of their work and employers have historically been unresponsive to their needs. In every virtually other industry (and increasingly in agriculture in other provinces), the only effective solution has been for the state to step in and determine and enforce safety and other employment standards.

      I agree with your analysis about the financial pressures faced by many farmers. That said, I disagree wit the proposition that the financial difficulties they face justifies excluding paid farm workers from basic employment rights. There might well be some flexibility in which standards are appropriate (which I believe the Bill6 working groups are sorting through now). But a tight bottom line does not justify exposing workers to hazards with no recourse.

      I am deeply sympathetic to the financial difficulties of producers. I do, however, question much of the hyperbole around Bill 6. The financial costs associated with (for example) workers’ compensation coverage for seasonal workers or other wage floors and hours of work ceilings are not going to be particularly large. Those producers who will bear most of these costs will be the largest producers (as they have most of the employees).

    2. I worry this is going to sound flippant (and I don’t mean it that way), but if a farm cannot afford to (for example) insure its workers against the potential losses associated with workplace injury, then perhaps that farm is not economically viable. Because (in this example) its viability before Bill 6 appears to turn on externalizing production costs onto workers (and taxpayers) in the form of injury. I’m not sure how asking farmers to take responsibility for injuries occurred on their farm is an unfair competitive barrier. Farms in other jurisdictions appear able to bear this cost.

      I do agree that the financial pressure that farmers face (particularly the long-term cost-price squeeze) has pushed (and likely will push) some producers out of business. Yet, that does not mean that food production will decline or even be significantly impacted. The trends evident in the agricultural census suggest that what happens is that farms are consolidated into (much) larger and more specialized operations (there are pros and cons to that—the point being that Bill 6 is not a threat to an increasingly globalized food supply).

      I’m not sure I agree with this analogy.

      “…but the legislation imposed is equivalent to telling you that tomorrow, there will be new rules for how you operate your car, and if you fail to follow them, you will be fined $10,000 / day or your car will be removed, and that the government will tell you what those rules are in a year or two, but in the mean-time, they're in effect. “

      I see four major problems with it. First, the majority of the Bill 6 rules are not in effect (only WCB is fully in effect and its costs are small). The rest of the rules are still being sorted out and, since they are not in effect, the unfairness you identify does not exist. Second, there is no provision I can see for farm seizure. Third, the history of OHS (and other employment rules) in Alberta is that the government is extremely reluctant to fine anyone (even when there is an egregious fatality) so fines are unlikely. More likely employers will be asked to remedy short comings. Fourth, if everyone in my neighbourhood was operating their car in a way that resulted in a disproportionately high rate of injury to their passengers (who may bear that risk unwillingly), wouldn’t we expect the government to step in?

      I expect we won’t agree about many of these points but thank you for your comments and their civility.

  7. Hi Bob, This is me Bobbie and I have to disagree that the government is "extremely reluctant to fine anyone" If you look at other industries (which we are supposed to be following the basic ohs regulations , for now) they issue fines all of the time. One example that I find Very disturbing night be a situation like this one that I found on the OHS Insider Newsletter - "Company Hadn’t Reached Point of Undue Hardship as to Foreman’s Drinking
    A foreman with a cable company was charged with impaired driving while off duty. He reported
    it to the company and went to an EAP counsellor, who told the company he had an alcohol abuse
    problem. The foreman completed an inpatient treatment program and then returned to work
    under a post-treatment agreement (PTA). After the foreman confirmed that he’d “slipped” a few times and began drinking again, he was fired for violating the PTA. The union filed a grievance.
    The arbitrator found that the PTA wasn’t a last chance agreement but rather the company’s
    response to its duty to accommodate the foreman. And although the company had taken some
    steps to accommodate the foreman, it hadn’t reached the point of undue hardship despite his
    drinking and lying about it. So the arbitrator ordered his reinstatement subject to additional
    conditions related to his drinking [Shaw Cablesystems GP v. Telecommunications Workers’ Union, March 31, 2014" Situations like this are NOT fair to the EMPLOYER. WCB protects the farmer from being sued by the employee BUT an employee stick their hand or arm in a cement mixer (brilliant) and , again from the same ohs page "Amputation of Worker’s Arm in Cement Mixer Costs Employer $87,550
    A worker’s left arm was severed above the elbow while taking a concrete sample from a
    cement mixer. His employer was fined $87,550 for failing to conduct a job hazard analysis in
    order to develop appropriate responses, including the use of required safety devices, and failing
    to develop and implement safe work procedures for the safe operation of the cement mixer". I think that all of the state interferenece has possibly taken the common sense part of the human brain and shelved it for the "good" of all employees. I know that htese are not farm examples BUT they are examples of how a company can be fined. These two are just a tiny example of the VERY long list. What about NOT being allowed to random drug test your employee? Not that any company would probably want to anymore as it will hurt them more? Again from the same ohs article - "Arbitrators Reject Random Drug & Alcohol Testing Policy for Oilsands
    An oil and gas company attempted to impose a random drug and alcohol testing policy on
    its workers. The union challenged the policy, arguing that it would violate workers’ rights to
    privacy, respect and dignity in the workplace. In 2012, a court granted the union an injunction
    against the policy. The Alberta Court of Appeal then sent the case to arbitration. The arbitration
    panel sided with the union, ruling that there’s no evidence of an out-of-control drinking or
    drug culture at the company. The random testing policy was an unreasonable exercise of the
    company’s management rights because the policy has no time limits to review its effectiveness,
    isn’t targeted as narrowly as possible, doesn’t use the least intrusive or most accurate testing
    measures available and doesn’t have provisions for communicating with workers about false positives". Now these employer's hands are tied when a worker is stoned at work. they can't dismiss them, they can't test them and yet other workers will be able to refuse to work because it is unsafe because the guy is stoned or drunk and the employer will have to shut down and if somehow someway they can prove the guy was a hazard they will have to pay to rehab him and then rehire him and then if he is stoned again at work they still can't fire him ??? How is this a good thing?

    1. Bobbie,

      Thanks for your note.

      There are tens of thousands of serious injuries and hundreds of thousands of injuries of all types in Alberta. I can’t (off hand) find any data on fines except related to prosecutions. You can count this number on two hands.

      It is unclear to me the relevance of your note about the foreman with the addiction problem. The arbitrator (who has nothing to do with OHS) found the employer failed to accommodate a disability.

      Regarding the Manitoba worker whose arm was injured, it is important to look at the context. The employer placed dangerous machinery in the worksite. The employer failed to assess the hazards and develop a control strategy. A worker was injury so the employer got dinged, as it should: the employer controls the workplace and has the responsibility for ensuring it is safe.

      Random drug testing is a complex issue, where workers’ rights to privacy are balanced with the need for safety. The evidence (taken as a whole) suggests random testing does not reduce injuries.

      Employers are still able to test workers for cause, post-incident, and in safety sensitive positions. Workers are able to refuse unsafe work if they believe a coworker is impaired; an employer may be able to require testing (this would be a for cause test).

      If a worker claims a disability (i.e., is an addict), the employer is obligated to accommodate the worker to the point of undue hardship (a threshold that varies with employer size). This does not necessarily require the employer to pay for rehabilitation.

      I hope this is helpful.

      Thanks kindly,