Tuesday, December 18, 2012

Holiday break

With the university trying to make its books look better than they are by removing one-time liabilities before year end (because that will fix the structural deficit...), I've been forced to take the three days of holidays I've accrued starting tomorrow. 

I expect I'll pop in at least once during the holiday break: December 28 is when the government likes to quietly release the years occupational fatality numbers. Until then, I'll leave with a pretty picture and this poignant skit, where Santa makes the North Pole a right-to-work state.

-- Bob Barnetson

Monday, December 17, 2012

Are sex-injuries on a business trip compensable?

An Australian woman travelling on business and injured during sex, has finally won workers’ compensation benefits.  The interesting part of this is not the tawdry details (although I am as curious as the next guy how the light fixture got dislodged and landed on her face…), but rather the temporal and moral dimension of the case.

Workers’ compensation is designed to compensate injuries that arise out of and occur in the course of employment. Often the arises-and-occurs test is easy to apply: if you trip on a pallet at work, fall down and break your wrist, your injury clearly arose form and occurred during the course of employment.

Other times, this test is trickier to apply. Consider positional risk: if you are bitten by a cobra while walking through a park for a work purpose (maybe you empty garbage cans), the injury still arose and occurred even though everyone in the park was at risk of (the admittedly odd-ball) snake bite. Coverage occurs because, but for the employment, you would not have been in the park. 

Things get more interesting with travel. In Alberta, if you have an MVA on your way to work, it is unlikely you are covered under workers’ compensation. Unless you were performing a work-errand on your way to employment (and the, only for the duration of the errand), or travelling on an employer-controlled road or on employer-controlled transport. 

But if you are injured while “away” on an employer sanctioned trip (i.e., but for the trip, you would not have been in the hotel), are you covered? The rules in Alberta are a bit tighter than they appear to be Australia. In Alberta, you are covered during travel while fulfilling basic comfort needs, but not during recreational activities on an overnight trip. So sex injuries are likely to be deemed non-compensable.

I expect there will be a certain amount of ridicule of the Australian decision. We see similar reactions in Canada when an intoxicated worker is injured and gets compensation. This ridicule typically reflects a moral judgment (e.g., he was drunk and got what he deserved; she was loose—why should she get compensation?).

The purpose of workers’ compensation is not, however, to moralize. Rather, it is to award compensation within the rules set out by the WCB (whatever you may think of those rules). Should there be criminal activity (e.g., impaired driving), that is resolved via the criminal system, not via workers compensation. Otherwise, workers’ compensation should be blind to the moral dimensions of the injury.

-- Bob Barnetson

Wednesday, December 12, 2012

Tim Horton's in trouble of foreign worker treatment

The issue of the use and abuse of Canada's temporary foreign worker (TFW) program has been in the headlines quite a lot lately. In BC, a mining company is in trouble after it made speaking Mandarin a job requirement (likely in violation of the BC Human Rights Code), couldn't find any Canadian miners who speak Mandarin (cough, cough), and thus sought out a couple of hundred Chinese workers.

This morning, Tim Horton's is in the headlines with complaints about the treatment of TFWs in both Saskatchewan and BC. There is nothing surprising in these stories--guest workers are exploited by employers all over the world, including in Canada. What is interesting can be found in the comments section for these articles.

There is a growing understanding by readers that the "labour market shortage" argument advanced by governments and employers to justify TFWs is not as ironclad as it first appears. Several commenters are (implicitly) noting that higher wages tend to draw more workers into the workplace, thus a labour shortage exists only so long as present wage and working conditions continue. Higher wages or better working conditions can alleviate it without the need to resort to vulnerable migrant workers.

I'm not suggesting that there is widespread adoption of this line of thinking, but it is circulating and it is occurring more frequently in discussions around TFWs. My sense is that the public is about to put together the economic angle (companies use TFWs to suppress domestic wages) with the moral angle (TFWs are exploited and abused). They are also about to take note that the federal government is colluding with employers to limits domestic wages and abuse foreign nationals. That will become a significant public policy issue for the Harper government to manage in 2012.

-- Bob Barnetson

Tuesday, December 11, 2012

Right to work laws in the US

Neil Macdonald wrote an interesting and very accessible piece today about US right-to-work laws, specifically considering Michigan's incoming law.

Right to work laws basically remove any requirement for workers who benefit from union contracts to pay dues or be members. They also remove the obligation of unionized employers to deduct dues from worker paycheques.

In effect, these laws undermine the financial security of the union. Unions are forced to spend resources chasing dues and representing free-riders, rather than seeking improved working conditions or political change beneficial to workers. Which is, of course, the point of "right-to-work" laws.

Combining right-to-work laws with the US preference for the employment-at-will doctrine and a loose labour market and you have a recipe for low-wage work.

-- Bob Barnetson

Monday, December 10, 2012

Justifying the exclusion of farm workers from OHS

The autumn edition of Socialist Studies is out and with it is my paper "No right to be safety: Justifying the exclusion of Alberta farm workers from health and safety legislations." This paper analyzes a decade of statements by government MLAs to justify the continued exclusion of farm workers from basic OHS rights that you and I take for granted--such as the right to be safe or the right to know about hazards in their workplace.

Three justificatory narratives emerge from the discussion: (1) education is better than regulation, (2) farms cannot be regulated, and (3) farmers don’t want and can’t afford regulation. Analysis of these narratives reveals them to be largely invalid, raising the question of why government members rely upon these narratives. The electoral rewards associated with maintaining this exclusion may comprise part of the explanation.

-- Bob Barnetson

Saturday, November 24, 2012

Workers and the Petro-State: Worker Safety and Injury in Alberta

Workers and the Petro-State: Worker Safety and Injury in Alberta
Parkland Institute Petro, Power and Politics Conference
24 November, Edmonton
Bob Barnetson, Associate Professor
Labour Relations, Faculty of Humanities and Social Sciences

Good morning. My name is Bob and I’m a prof at Athabasca University. What I’d like to talk to you about this morning are workplace injuries in Alberta—specifically why Alberta has so many injuries and why the government does nothing about it.

I understand there’ll be time for questions and personal attacks at the end of the session, but I’m also happy to take questions on the fly. But let’s start out with me asking you some questions. Does anyone know someone who has been injured at work?

What kinds of injury?

Unfortunately, that’s a pretty typical set of the responses.

Anyone want to guess how many workplace injuries there are each year in Alberta?
My estimate is that there are about 500,000 workplace injuries in Alberta each year. Which is a staggering number in a workforce of about 2 million. What’s really interesting about this is that the government never talks about these injuries.

Government Injury Statistics
Each year, the government reports about 150 occupational fatalities and around 50,000 serious workplace injuries—and that’s it. No other injuries exist if you look at government documents and press releases. Yet that is a gross understatement of the true level of injury.

WCB stats show us that are an additional 100,000 or so injuries requiring medical aid—a trip to the doctor. The government knows about these injuries, but they just never mention them. So right off the bat and using the government’s own stats, we see that the true level of injury in Alberta is at least 150,000 injuries per year.

We also need to account for the 13% or so of workers not covered by WCB. Their injuries aren’t recorded in the WCB claim stats the government uses because they can’t file a WCB claim. That takes us to about 175,000 injuries a year.

Then we need to factor in the 40% of reportable injuries that aren’t reported, for a variety of reasons. That takes us to about 250,000 injuries a year—or five times the level of injury the government talks about.

We then need to factor in injuries that don’t have to be reported. These are minor injuries—cuts, burns, bruises—where workers just basically tough it out. Yeah, these are minor injuries but they are still injuries that we might prefer to avoid. And they are injuries we get because our employer put certain hazards in the workplace—like sharp knives in hot soapy water in a restaurant.

There is no good way to estimate the frequency of minor injuries. My guess is that they are very common and likely the overall injury total is around 500,000 injuries a year. You’ll note that I’ve excluded occupational illness and psychological injuries—such as those caused by stress—so the real number is going to be even higher.

These numbers tell us three things:
  1. Alberta workplaces are extremely unsafe.
  2. Alberta’s government consistently understates the level of injury—by a factor of 10.
  3. Alberta’s occupational health and safety system—its injury prevent system—is a failure.

The question then becomes, why?

Lack of Enforcement
At a basic level, Alberta workplaces are unsafe because of widespread employer non-compliance with safety laws. For example, in 2011, the government announced a safety inspection blitz in residential construction. Despite knowing government inspectors were coming, the majority of the 387 employers inspected were found to have safety violations on their worksites. And a quarter of them had violations so serious there were stop-work or stop-use orders issued. Sadly, this is fairly typical of inspection results.

This degree of employer non-compliance reflects long-term, anemic government enforcement. Employers know there is almost no chance they will be caught violating the rules. For example, on average, workplaces are inspected less than once every 14 years in Alberta. If you call in a safety violation, it can take safety inspectors up to 18 days to respond. So there is really no real chance of an employer getting caught breaking the law.

Employers also know that, if they do get caught, there is no penalty. Most of the time, they just get ordered to remedy the violation. Alberta does prosecute a handful of employers each year—typically when the employer has killed or seriously maimed a worker. But the fines for this are levied years after the event and are tax deductable (i.e., tax-payer subsidized). And a good lawyer can get the fine paid to an employer-sponsored safety organization—that is to say, the tax-payer subsidized fine can be paid to other employers to do safety work the employer should have been doing in the first place. The government is talking about ticketing violators. But they have been talking  about that since 2004. I’ll believe it when I see it.

As a result of this dynamic, employers adopt a cost-benefit approach to safety. They only prevent injuries that are cheaper to prevent than to incur. And because Alberta allows employers to externalize much of the cost associated with injuries onto workers and the taxpayer, very few injuries are “worth” preventing. Consequently, we have half a million annual injuries.

So why, then, does the government do such a crap job of enforcing it safety laws?

Why Does the Government Allow this to Happen?
There are a couple of reasons. The first is that the government faces few consequences when workers get maimed and killed. Workers who get WCB benefits worry they will lose their benefits if they speak out. In that way, compensation becomes a tool of manage worker discontent—it gives workers something to lose if they rock the boat.

Employees outside of the WCB system worry about getting fired. When I say that, I’m often told that if people were getting fired for complaining about safety, it would be all over the press. That’s wrongheaded for two reasons. First, people aren’t being fired, they are being subtly threatened with it and pressured to stay quiet. Second, the press doesn’t care.

We had a story this summer where a cleaner was sexually assaulted by a coworker on the job at MacEwan University. She told her boss. And her boss fired both her and her mother. That story—which is hugely juicy—got zero media play despite the SEIU holding a press conference to publicize it.

Inadequate enforcement also reflects that Alberta has a weak labour movement. I know it pisses Gil off when I say that but I think we need to be honest about the challenges. For sixty years, the government has enacted laws making it hard to unionize in order to keep workers cheap and docile for employers. By contrast, Alberta has a powerful employer lobby. You hear them howl every time a minimum-wage increase is mooted and they are often to stall or turn back such an increase. Alberta politicians know better than to cross powerful employers.

Regulatory Capture of Alberta’s OHS system
The upshot of this is Alberta’s injury prevention system has been captured by employers. Regulatory capture means a state agency that is meant to act in the public interest instead acts in the interests of one of the stakeholders—in this case, employers.

The evidence for this is overwhelming. Most visibly, the health and safety system is completely ineffective at preventing workplace injury—which is its raison d’ĂȘtre. Instead, it allows employers to organize work unsafely (because that is usually the cheapest way to do so) and thereby transfer production costs to workers in the form of injury.

Alberta’s OHS system is also largely funded by employers—another characteristic of regulatory capture. In 2009, Alberta spent about $23 million on injury prevention, of which nearly $22 million came from employer WCB premiums transferred to the government from WCB. If the government suddenly lowered the boom on employers—started putting them in jail when they kill workers—do you think the employer-dominated WCB would keep the money flowing?

The government has also spent a lot of time blaming workers for their injuries. The most recent example is the 2008 Bloody Lucky video campaign. The videos clearly portray workers as the cause of their own injuries. For example, one video shows a shoe-store employee climbing a rickety ladder in high heels, reaching for some stock (which is stacked precariously), falling backwards, breaking an unguarded light fixture and then falling onto the glass.

The impression the video conveys is that the worker was at fault. In fact, the employer told her what shoes to wear, gave her a defective ladder, stacked the stock up high and unstably and failed to guard the light fixture. While the proximate cause of injury was the worker’s behaviour, the root caused was dangerous job design.

The government also cheerleads industry efforts to blame workers. Most recently, employers have been trying to impose random drug testing in Alberta workplaces. The rationale for drug testing is that it will improve safety and, thus, this end trumps any privacy concerns workers have. Yet there is no evidence that random drug testing improves workplace safety.

Focusing attention on worker drug use does, however, target workers as the cause of workplace injuries: those darned stoned workers. It also obscures how construction and energy employers have contributed to drug use in the workplace. These employers rapidly expanded their workforces and staffed them with contingent workers. They then pay them lots of money, work them very hard and house them in isolated camps. It’s not surprising that this results in some drug use.

Instead of addressing these structural conditions (which employers created), the employers start disciplining workers for smoking dope. Which, in turn, drives workers to use crack, coke and meth—as these are harder to test for. So, is it really workers who are to blame for drug use on job sites?

Workplace Injury and Democracy
I see that my time is up so let’s bring this home in 100 words or less.

When I look at OHS in Alberta, what I see is a system that doesn’t prevent injury. I see a system that allows employers to organize work unsafely and provides employers with liability protection in the form of workers’ compensation. And I see a system that gives government political cover by blaming workers for their injuries.

This system undermines the right of Albertans to a safe and healthy work environment. This arrangement is not democratic. And it’s not in the public interest. Rather, it reflects collusion between the state and powerful employers to maintain the status quo regardless of the cost to workers.

-- Bob Barnetson

Wednesday, November 14, 2012

Settlement in Kevan Chandler fatality

Six years ago, Kevan Chandler was killed while working for Tongue Creek Feeders. It appears that his widow, Lorna Chandler, has finally received compensation for his death. This compensation comes after a six-year lawsuit. The settlement also appears to have forced Tongue Creek Feeders into bankruptcy, resulting in 40-odd workers being laid off. 

Like all Alberta farms, Tongue Creek Feeders was exempted from mandatory workers’ compensation coverage. And, like most Alberta farms, Tongue Creek Feeders did not choose to voluntarily enroll in workers’ compensation.

The Chandler case highlights some of the strengths found in the original compromise between labour and capital over workers’ compensation. For injured workers, compensation is (usually) immediate, predictable and stable. Had the employer been covered by workers’ compensation, there would have been no lawsuit, with its costs and delays and uncertainties.

Although it appears Chandler’s widow was compensated before the employer went bankrupt, the history of workplace injury is replete with cases where an injured worker wins a lawsuit against the employer only to see the settlement evaporate when the employer goes out of business. Workers’ compensation prevents this outcome.

For the employer, workers’ compensation provides significant liability protection. Had the employer bought coverage, it would not likely have gone out of business as a result of this fatality. The costs of the settlement would have been borne by all members of the industry group (basically risk is pooled). At worst, the employer would have seen an increase in its workers’ compensation premiums.

I’m often critical of workers’ compensation. Yet, for many workers, workers’ compensation provides an important financial support after they are injured. It is odd that Alberta exempts both the most hazardous industries (e.g., farm work) and the least hazardous industries (e.g., accounting) from mandatory coverage.

While voluntary coverage is available, it appears relatively few employers choose to enroll in it. I expect this reflects a combination of ignorance, wishful thinking and cold calculation about the probability of a successful lawsuit if a worker is injured or killed.

-- Bob Barnetson

Thursday, November 8, 2012

Media coverage of unions

An interesting thesis came across my desk(top) this week. Travis Reitsma's MA thesis from the University of Windsor's examines media bias in the coverage of the 2009 municipal workers' strike in Windsor. Reitsma examined 480 records from the Windsor Star to find anti-union bias in its reporting.

-- Bob Barnetson

New research on foreign workers and injury stats

Just Labour has issues its newest issue and there are two articles of note.

My colleague Jason Foster has published "Making temporary permanent: The silent transformation of the temporary foreign worker program". The gist is the TFW program expanded in the mid-2000s to address labour shortages but following the recession in 2008, has not contracted. That is to say, as a group, foreign workers are not temporary (contrary to federal and provincial government rhetoric) but rather represent a seemingly permanent group of (increasingly low-skill) workers that expand the labour pool. One implication of a looser labour pool may be a concerted effort to reduce wage pressures.

I also have an article in this issue entitled "The validity of Alberta safety statistics". The crux of this article is that injury statistics used to monitor workplace safety in Alberta significantly under-report the rate of injury and appear vulnerable to gaming, both by employers and the workers' compensation board. These threats to the validity of these measures suggest the government should limit the inferences drawn from them, which include "informing" the public that workplaces are relatively safe and increasingly safer.

-- Bob Barnetson

Wednesday, November 7, 2012

Free screening: Village of Widows

Edmonton Opera is presenting a free screening of the documentary “Village of Widows” by award-winning filmmaker Peter Blow on Tuesday, November 13th at 7 pm at the Citadel Theatre’s Zeidler Hall. Admission to this event is free and there will be a post-movie panel discussion.

“Village of Widows” recounts the story of the Sahtu Dene people of Northwest Territories who worked in the world’s first uranium mine at Port Radium, NWT. Members of this community worked for the mine carrying sacks of ore which has left them vulnerable to the hazardous effects of uranium.

Arn Keeling and John Sandlos wrote an interesting piece on this event in 2009 entitled "Environmental justice goes underground"

-- Bob Barnetson

Thursday, November 1, 2012

Farm safety questioning continues

The fireworks over farm safety continued in the legislature yesterday during question period (p .416). This sort of debate provides intereating insight into the politics and politicking around farm safety and child labour in Alberta. 

Liberal David Swann raised the denial of farm workers of virtually all employment rights that the rest of us take for granted with Minister of Ag and Rural Development Vern Olson:
Dr. Swann: Thank you, Mr. Speaker. Over the summer there was discomfort across the agricultural sector over the possibility of a boycott of Alberta products from international corporations such as Pepsi, Frito-Lay, McDonalds, and Yum! foods, who have strong ethical procurement positions related to child labour and human rights in agriculture. It is interesting to note that the city of Medicine Hat is now also looking at its procurement policy. As most Albertans are shocked to realize, the paid people employed to produce our food, not including family members of family farms, are without protection under occupational health and safety, WCB, and labour standards for children. To the agriculture minister: are you concerned that these major buyers of Alberta meat and other produce, seeing the conflict, may be forced to boycott . . . 
 The Speaker: The hon. minister. 
 Mr. Olson: Well, first of all, Mr. Speaker, I will acknowledge the hon. member’s interest in this issue. He’s been talking about it for some time. I want to acknowledge that, but I also want to say that I’m very disappointed at his comments, which put our industry at risk in terms of talking about boycotts and, I would say, encouraging multinationals to boycott Alberta farmers, Alberta producers, and Alberta workers. Now, we take this issue very seriously. We’re very interested in worker safety, too. That’s why we have struck a Farm Safety Advisory Council. I have their report. The Minister of Human Services and I are working on a response.
It is interesting that Olson emphasizes the potential economic effect of a boycott (a symptom of child labour in farming) rather addressing the root cause (the existence of child labour on farms, in contravention of international law). As an observation, if Olson took the issue of farm safety "very seriously" wouldn't he do something with the report from the farm safety committee in the eight months since he received it?

Swann then changes tactics and questions Minister of Finance Doug Horner about the cost transfer that occurs because farmers are not required to carry workers’ compensation coverage in Alberta. This is an interesting angle because it highlights how farms are given special treatment by the government and that one of the effects is to transfers production costs onto taxpayers and injured workers.
Dr. Swann: Thank you. Well, as a lawyer I’m concerned about your lack of commitment to human rights in this province. To the Finance and Treasury Board minister: is it acceptable to you that commercial agricultural operations choosing not to have WCB are downloading health care costs onto the public purse to the tune of $4.5 million annually, at a minimum, according to a local expert? That’s a lot of hip replacements, road work. How do you feel about that? 
Mr. Horner: Well, Mr. Speaker, first of all, I’d like to know who the local expert is that came up with that number. Secondly, coming from a farming family myself and having some history in the agricultural community, I’m obviously concerned about farm safety, very concerned. I’ve had friends who have been injured on the farm because they were farming their farm. The two ministers are working on the report. We expect to have the results of that soon.
As it happens, I’m the local “expert” (although I wouldn't use that term myself). Here’s the estimate based on what data is available. If someone has better data or a sharper analysis, I’d love to look at it:

In 2011, the WCB reported 2825 workers on 1300 “farming operations” covered by workers’ compensation in Alberta. “Farming operations” exclude apiaries, feedlots, greenhouses, etc. but “farming operations” seem to encompass the largest group of agricultural workers (and there was no way to weight the data properly to include these other types of operations) so I used farming operations data.

Among workers on farming operations, there were 76 workers’ compensation claims accepted with total medical aid cost of $227,000 (wage-loss and rehab costs are excluded). To calculate the overall annual medical costs of agricultural injuries, I first divided the medical costs by number of workers ($227,000/2825 workers). This gets us a rough figure of $80.35 in medical aid costs per worker.

I then multiplied the annual per-worker medical costs by the number of agricultural workers in Alberta. There is no agreed upon number of agriculture workers so I chose 60,000 so as to account for the number of individual operators (about 49,000 from the 2006 federal ag census) plus the number of waged agricultural workers (about 12,000, a widely accepted estimate). The upshot is $80.35 x 60,000 = $4,821,000 in medical costs per year.

At present, the WCB pays $227,000 in medical aid costs so I took that out of the $4,821,000 to get $4,594,000 in annual injury costs. This $4,594,000 is the medical costs from agricultural workplace injury paid for by Alberta Health Services and individual workers each year. In effect, this is a cost transferred from industry (which would otherwise pay for it via WCB premiums) to the general taxpayer and workers because workers’ compensation insurance is not mandatory in agriculture.

There are many caveats with such a rough calculation. First, the number of agricultural workers is really pivotal in the calculation and I am admittedly guessing at this number. The province should be able to come up with a better number.

Second, there is significant under-reporting of injuries (about 40% of injuries go unreported) thus the true overall transferred costs might well be much higher (e.g., $7,656,667).

Third, I have used data from “farming operations” as the basis of the per-worker cost. Workers in feedlots have much higher medical aid costs ($187 per worker per year), thus the calculation will underestimate the true cost transfer, but not in a way I can correct for.

Fourth, this estimate is likely to exclude most costs associated with occupational disease. This would drive the number up appreciably.

So back to the Leg. Swann asks again Minister of Human Services Dave Hancock when the province will be responding to the report by the Advisory Committee on Farm Safety that was submitted in February (and leaked this summer). 
Dr. Swann: Yes. They’ve been working on it for decades. How many more decades, Mr. Minister? To the Human Services minister: since the Premier pledged to extend occupational health and safety and WCB to paid farm workers, excluding family farm members, the question is: when? Albertans want to see change. 
Mr. Hancock: Mr. Speaker, seeing as that question has been answered twice already, that we’re working on it and it’ll be coming shortly, perhaps I could use the time that I have to ask the hon. member to stop disrespecting potato farmers and other farmers in the province by encouraging international companies who have got policies to boycott their products.
Hancock seems to be one of the sharper and more moderate PC ministers. That he chose in his comment to advance the interests of potato farmers allegedly using child labourers rather than the interests of children I think tells us a fair bit about where the government is going to come down on farm safety laws (and in particular child labour) in one of Alberta's three most dangerous industries.

-- Bob Barnetson

Wednesday, October 31, 2012

WCB for farm workers dust-up at the Leg

There was quite a dust-up in the legislature yesterday afternoon during debate over amendments to the Workers’ Compensation Act that would give first responders automatic coverage for post-traumatic stress disorder.

During the debate, the Liberals questioned whether extending automatic coverage to some groups was appropriate when other groups (such as farm workers) were excluded from even basic coverage (starting on p.369). 
Dr. Swann: Thank you, Mr. Chairman. I rise in support of this, having said something about these issues in the past. As is often the case in the House, one is struck by the ironies that confront us in this work, and maybe the word is even “contradictions.”
 In the House today we again have two farm workers, Eric Musekamp and Darlene Dunlop, who represent a major occupational group in the province who are not fighting for preferential access to WCB. They’re not even fighting to see their particular occupation group, farm workers, deal with PTSD. They simply want WCB. They have been excluded from any access to WCB. Our food producers: no mandatory requirement for farm workers to have WCB. There is the correct phrase. Any commercial employer who has paid farm workers has the option of whether to provide compensation for injury or death in this province. We are today talking about accelerating access for a particular group of professions in Alberta who are finding it difficult to get appropriate, timely, effective WCB coverage, and we’re ignoring a whole group of people, thousands and thousands of workers who produce our food every day and who don’t have guaranteed access to any compensation, who don’t live within the context of occupational health and safety standards, who aren’t even under the labour code in this province in 2012. …
Wild Rose MLA Kerry Towle then responds to Swann’s assertion that farmers ought to be compelled to enroll in workers’ compensation insurance (like every other employer).

She characterizes Swann’s request for mandatory WCB for farms as premised upon the assertion that farmers intentionally endanger workers and don’t cover them in the hope that they will get hurt. Basically, she demonizes Swann for purportedly demonizing farmers (although, when you read Swann’s statement, he doesn’t actually demonize farmers, he just wants farm workers to have coverage).

After an incoherent digression about how calling turkeys helps a 10-year-old understand that running into the street is dangerous (so child labour is thus good?), Towle trots out the bogeyman of farm bankruptcy if workers’ compensation is required. There is no evidence the WCB premiums will force farmers out of business. 

Moreover, not having workers’ compensation coverage simply means that the cost associated with workplace injury on farms is transferred to the taxpayer (via the health system) and the worker. Is it in the public interest to subsidize business so apparently marginal that they can only exist by externalizing the cost of injury to others?

Then she suggests child labour teaches “some good morals and good ethics” and that farmers are somehow disadvantaged in Alberta. Apparently being able to deny farm workers virtually every employment right that every other worker in Alberta (not to mention farm workers in every other province) have is an indicator of disadvantage?

Anyhow, you can judge this for yourself:
Mrs. Towle: … You know, as a person who was a farmer – my husband and I owned a turkey farm. We were farmers, and we were a corporation, a full-blown corporation. We were incorporated. There were two of us. Yes, our three-year-old daughter all the way up until the age of eight helped us out on our farm. This is what family farms do. Not only that. My father-in-law is a big, huge dairy farmer, milks over 220 cows: again, a corporation; again, a family farm. His daughter farms; his son-in-law farms. Every once in a while we go over and help, and my sister-in-law’s five children assist in that family farm operation.
 There’s one thing that’s forgotten here. Most of these family farm operations, which are nasty little corporations – I understand that – do this because we’re building a lifestyle. Part of the reason, and I experienced it myself, that we’re building that lifestyle is because we want our children to grow food for Albertans, and most of us do that in a very safe and effective manner. I don’t believe for a second that there’s a single farmer out there that is purposely putting their employees in dangerous situations, not covering them with WCB, and purposely hoping that at some point in time they’ll be injured just so they don’t have to cover them. That’s not the case. I think we need to take away this whole idea on the left that all of a sudden every farmer in this province is bad, bad, bad because they’re incorporated and they’re doing things with their children. I personally find it offensive that we continuously hear this. They’re owning a business and teaching their children about morals, values, and good work ethics. My little girl for five years helped us; my little girl called turkeys. Now, hey, the people in my town thought that it was cruel to call a turkey. But do you know one thing that my little girl does understand? My 10-year-old little girl understands when I tell her: don’t run across the street in traffic; you will die. She understands exactly what that means. If you start imposing WCB regulations on family farms, you will darn well put them out of business. It’s about time that people on the left understood what our farms do for our people and what they bring to this province. This is absolutely ridiculous. In this case we’re talking about family farms, but it’s not limited to family farms. What about the restaurants that bring in students? We hire them at 12 years old. I was one of those students growing up. At 12 years old I went in and washed some dishes, got some good morals and good ethics, and went forward. Today I’m a hard-working Albertan giving back to Alberta. I’m absolutely in favour of protecting those that need to be covered. We absolutely need to protect those people who are in traumatic situations on a daily basis and those people who need to be covered by WCB and need to have that presumptive nature removed and also have proven or have the presumptive nature removed so that if they have WCB, they have proper coverage and they have the proper clinicians to help them. There’s no question about that. But we need to stop turning this argument into: let’s go bad on those big, bad farm corporations; they’re out to hurt everybody. It’s about time somebody started standing up for the farmers of this province.
When the farm workers union attempted to follow up with Towle in the hallway afterwards, she wouldn’t engage and another Wildrose MLA threatened to have the sheriffs eject the farm worker reps from the legislature. It should be interesting to see how the government handles questions about this issue during the next few years.

-- Bob Barnetson 

Thursday, October 25, 2012

Jurisdictional issues responsible for higher injury rates in western provinces?

The Ontario-based Institute for Work & Health has just released a research summary on a project examining provincial differences in injury rates. Workers in western provinces typically have a 30-50% higher risk of injury than workers in Ontario. The reason why has been unclear but often worker and industry characteristics and mooted as the cause.

The IWH summary (the research is presently under peer review) indicates some individual-level factors increase the risk of injury: being male, being under 55 (and especially between 25 to 34) years of age, not completing post-secondary degree, being Canadian-born as opposed to an immigrant, working full-time, reporting medium or high job stress levels, and working in agriculture/forestry/mining/utilities, construction or manufacturing.

An area’s socioeconomic status (household income, education levels, etc.) was slightly associated with risk of work injury, but an area’s labour market status (unemployment rate, percentage of permanent jobs, etc.) and workplace characteristics (size of firms, degree of unionization) were not.

Finally, provincial differences in work risk were found, even after taking individual and area-level factors into account, including industry mix. Workers in the western provinces were shown to be at higher risk of work injury compared to those in Ontario. Specifically, Saskatchewan showed 27 per cent higher risk compared with Ontario; Alberta, 28 per cent; and British Columbia, 49 per cent.

The key point is that provincial differences in work injury risk persisted after taking into consideration individual characteristics and industry of employment. This finding of unexplained differences in provincial work injury risk suggests factors affecting work injury are operating at a jurisdictional level, such as a jurisdiction's economic or health and safety policies.

-- Bob Barnetson

Tuesday, October 23, 2012

Progress on administrative penalties

The government will be introducing amendments the Occupational Health and Safety Code during the fall sitting of the legislature that (if passed and enacted) will permit cabinet to create regulations allowing OHS officers to issue administrative penalties.

This is the first step towards actually implementing fines for OHS violations, which is promised in 2013. The real question is what will the administrative penalties look like (i.e., who gets fined how much for what infractions) and whether OHS officers will use them.

-- Bob Barnetson

Thursday, October 18, 2012

CEP wins Suncor drug-testing injunction

There have been some developments in the random drug-testing dispute between CPE and Suncor. Last Friday, CEP got an injunction at the Court of Queen’s Bench to delay implementation of random drug testing of employees until the matter was heard by an arbitrator. On Wednesday, Suncor was before the Court of Appeal, trying to get the QB injunction overturned. 

I’ve had a fair number of questions about this dispute (basically: “what is the law?”). In random workplace drug-testing, there are two principles in conflict: workplace safety and employee privacy. Suncor’s argument on Wednesday continued to focus on safety:
“Every day that passes, the risk increases,” said Suncor lawyer Tom Wakeling. “The Suncor workplace is inherently a dangerous space. The consequences of mistakes in this hazardous environment may include catastrophes.” Wakeling said an injury or death in the absence of the program could cause irreparable harm to Suncor, which he said should trump privacy matters and other concerns the workers have.
Sometimes the safety argument justifies the violation of worker privacy that drug testing entails. For example, if a worker appears impaired on the job, then testing that worker might well be justified. But it is not always this clear.

For example, many employers want to drug test workers whenever there is an injury. If the injury was caused by a mechanical malfunction (e.g., a chain breaks) then testing wouldn’t be appropriate as impairment was not the cause of the injury. On the other hand, if the injury was caused by an error in worker judgment, then post-incident testing might well be warranted to rule out impairment as a cause.

CEP’s argument is that random testing is an unjustifiable violation of worker privacy. For example, there is no probable cause for random testing. If a cop wants to look in your trunk, she needs probable cause. Under Suncor’s random testing policy, no probable cause is needed. It seems strange to argue that a company ought to have greater search-and-seizure powers than the police.

The testing itself (as evidenced by two affidavits) is demeaning: basically you get to strip off your outer work clothes (which means you can be standing there in your undies) so you’re not hiding any clean urine on you and someone watches you pee into a tamper-proof toilet (there is a half-height screen). Among the stories I heard this week (not necessarily all from Suncor) include a menstruating woman’s experience with pee-testing and the story of a fellow whom, for religious reasons, had never been naked in the presence of another guy and was forced to drop trow and take a leak. What these stories tell us is that a pee-test can be very invasive and psychologically damaging. Given that there is no evidence random-drug testing reduces injury rates, can such an invasion of privacy really be justified?

Further, the Suncor policy is overly broad because it does not distinguish between drug-related injury and safety issues among its employees and its contractors. CEP represents the employees, most of whom are long-term (sometimes even second-generation) Suncor employees who live in Fort McMurray and (the union asserts) don’t have any unusual drug or alcohol issues. The problematic workforce appear to be contractor employees (transient workers who live in camps). Suncor’s approach treats all of the employees as if they are equally at risk of drug-related incidents.

An interesting implication of this assertion is that the energy and construction industries themselves are partly to blame for any drug-fueled injuries. Companies have chosen to rapidly expand their workforce and hire transient workers. They then pay them big money (which they nothing to spend it on), work them long hours (12-hours shifts) for weeks at a time and house them in isolated work camps. It is not surprising that many of these workers will use mind-altering substances, like pot. The companies’ response has been to test and discipline for dope. Consequently, workers move on from dope to other drugs that are harder to test for—like meth, cocaine and crack.

Finally, the consequences of a false positive (which is more common than you’d think) can be devastating. Even workers who are cleared in the end, wind up stigmatized by the false positive. The arguments and outcome of the arbitration ought to be quite interesting.

-- Bob Barnetson

Monday, October 15, 2012

Commentary on federal union "transparency" bill

The National Post carried an interesting opinion piece addressing the federal government's efforts to make unions "more transparent". The background is that the feds want unions to disclose lots of information because unions (via their members) receive a public benefit (union dues are tax deductible).

The authors of the opinion piece suggest, if that is the principle behind the bill, then the bill should go much further and also require corporations to disclose information (as they get all manner of public benefits). That the Tory's bill does not do so, suggests this is more of an attack on unions than a principled approach to transparency.

-- Bob Barnetson

Anti-privatization tactics in seniors' care

Alberta’s government has been slowly privatizing long-term seniors’ care. This includes allowing private operators to run homes as well as contracting out services within public-sector seniors’ homes.

AUPE (the Alberta Union of Provincial Employees, representing workers in both public- and private-sector seniors homes) has responded to this in several ways. More traditionally, AUPE has pursued better wages in private-sector homes via a series of labour disputes. In effect, they are attempting to take wages out of competition and make privatization less attractive to the government. As part of this bargaining strategy, the union has characterized the operators as ripping off the taxpayers—in effect casting itself as protecting the public interest. 

More creatively, AUPE has backed a documentary about the terrible food being offered to seniors in public-sector lodges after food preparation was contracted out, centralized and turned into a reheat-and-eat approach. The documentary addressed both the palatability and health-effects of this change. It is a pretty disturbing documentary to view.

A representative comment from a viewer is:
I'd love to lock up all 61 Tory MLA's in the Legislature and feed them this menu. I wonder how long they would tolerate it for themselves. I'd serve it to them for free! I wonder which scum-sucking conservative(s) is(are) benefitting from ripping off seniors in Alberta.
Yikes.The government was eventually embarrassed into reversing this form of contracting out and home-cooked meals will return to seniors lodges as of December, 2012.  There are lots of unique factors at play in this particular instance. But it and the www.stoptheripoff.com campaign illustrate the potential of publically embarrassing employers and the state into doing the right thing. Things which also yield outcomes beneficial to workers, such as preventing layoffs and avoiding two-tiered wage structures.

-- Bob  Barnetson

Wednesday, October 10, 2012

Priest guilty of foreign worker scam

CBC is reporting that two Albertans have pleaded guilty to illegally bringing approximately 60 temporary foreign workers into Canada.  This case dates back to 2004 and includes an Orthodox priest, his wife and a college employee (which sounds like the start of a bad joke…).

Basically, a group of Polish tradesmen (most of whom don’t speak English) were recruited to come to Canada by a company co-owned by a (then) St. Paul Orthodox Priest. The workers thought they were coming to work but arrived on student visas, allegedly to attend Lakeland College for ESL and welding training. Instead, they were put to work. By skimming their pay, the employer made over $1m in less than two years (one source suggests the company profits $1m in six months).

After getting busted in 2006, the employer eventually pleaded guilty with a fine of $215k (so less than 20% of the profit from the scam). The fine went to Lakeland College. It appears that a former employee of Lakeland College facilitated the scam by issuing letters to support the visa application. So, in effect, the College is profiting from its former employee’s wrongdoing.

It is unclear from the story if the workers ever got their proper pay. A 2011 CBC story reported the workers were suing the priest and his company for $5.5m. It also reported: 
The workers were forced to sign a contract which stipulated that, if breached, would result in a fine of $25,000 and/or deportation from Canada, said police. They were also allegedly instructed to not to discuss their wages or the arrangements of how they came to be in Canada.
CBC also reported:
Lipinski is countersuing the workers for $10 million, accusing them of concocting a conspiracy in order to be allowed to stay in Canada and besmirching the reputation of his company in the process.
It is not clear the status of either suit. Interestingly, the RCMP notes that this is the first conviction under the Immigration Refuge Protection Act in Alberta but that “”we're seeing this more and more in Alberta."

-- Bob Barnetson

Tuesday, October 9, 2012

Conference on criminalizing OHS violations

This May marked the 20th anniversary of the Westray Mine disaster, where 26 workers were killed as a result of dangerous and illegal working conditions.  One of the outcomes of the Westray deaths were amendments to the Criminal Code to allow for prosecution of companies for worker’s deaths. Steve Bittle (UOttawa) recently released a book addressing criminal liability for OHS after Westray.

A conference will be held at the University of Ottawa on October 24-25 to discuss the enforcement of criminal laws regarding occupational health and safety. The program for the event is available here.  The conference will be live-streamed here.

Several artists have written songs about the Westray disaster. One of the more poignant mining disaster ballads is (believe it or not) from the Bee Gees. Their first hit was New York Mining Disaster 1941 (inspired by the 1966 Aberfan mining disaster in Wales).

-- Bob Barnetson

Monday, October 1, 2012

Guilty pleas in 2007 CNRL tank collapse

More than five years after two workers were killed in a 2007 tank collapse on the CNRL Horizon site near Fort McMurray, the Edmonton Journal is reporting that SSEC Canada Ltd. (a Canadian Subsidiary to China's Sinopec) has pleaded guilty to three charges under the OHS Act.

The delay in proceeding reflects, in part, court proceedings where SSEC argued it had not been properly served. Eventually this was resolved by the Court of Appeal, the Supreme Court declined to hear the case, and prosecution proceeded.

During the investigation of these deaths, the government also discovered SSEC had short-changed about 132 foreign workers about $3.17m in wages, overtime pay and holiday pay (meaning workers got about 10% of the pay they were due). As far as it is possible to tell, SSEC had signing authority on the workers' accounts, put the cash in (to create a paper trail showing payment) and then scooped it back out. The union that was supposed to protecting these workers (the Christian Labour Association of Canada) was forced to go to China to ensure one widow received payment of death benefits.

CNRL fronted the cash SSEC should have paid these workers but the wages remain unpaid, in part because the Chinese government (which owns Sinopac, which owns SSEC) says the workers got paid (cough, cough) and refuses to give the workers the money. So the province gave the cash back to CNRL.

Anyhow, sentencing will occur in January. The crown says it is seeking $500k maximum per charge. It it is likely the guilty plea will include creative sentencing.

-- Bob Barnetson

Thursday, September 27, 2012

CBC Calgary series on farm worker rights

CBC Calgary has being doing a series on farm worker safety. Here are links to the three videos they've done:

Lack of WCB coverage

Migrant farmworker housing

Farm worker protection

You can also see a couple of longer clip of an interview with Eric Musekamp (Farmworkers Union of Alberta)

-- Bob Barnetson