Manitoba finds employers game WCB experience-rating system

A few weeks back, the Government of Manitoba released a review of its workers’ compensation premium assessment system. Of particular interest as the impact of experience rating on safety and access. 

Under experience-rating schemes, employers are rewarded for lower claim costs via lower WCB premiums. There is a fair amount of research that suggests employer respond to this incentive by aggressively managing injury claims rather than reducing injuries. Manitoba’s system has one of the more “aggressive” experience rating systems, thereby incentivizing employers to respond.

The Manitoba study found significant evidence that employers game this system via claims management, rather than reducing injuries. While this is not a surprising finding, the appendices are worth a read. One reproduces a very blunt bottom line calculation about how the employer can game the experience-rating system via modified work (suggesting that some employers are indeed amoral calculators) and thereby evade statutory reporting requirements. Another provides lengthy worker experiences with employer claims management.

-- Bob Barnetson

Gender implications of Alberta's PSE cuts

I ran across an interesting piece by four U of Alberta profs regarding the gender implications of the current rounds of PSE cuts. The gist is that PSE cuts hurt female workers because post-secondary education is one of the few levers that can offset rampant wage-disparity created by a male-dominant resource economy. The list of program loss that flow from Tory PSE budget cuts are (for the most part) programs where female students predominate. Overall, an interesting analysis of one of the gendered implications of the Tory's 2013 budget.

-- Bob Barnetson

Presentation: Tory message management around migrant workers in Alberta

Tory message management around migrant workers in Alberta
Parkland Institute Oil and Social Democracy Speaker's Series

May 16, 2013, Edmonton
Bob Barnetson, Athabasca University

As Jason noted earlier, Alberta employers significantly increased their use of temporary foreign workers (TFWs) between 2000 and 2011. That increase has caused a fair bit of controversy, both around the mistreatment of migrant worker and the potential of migrant workers to displace Canadians workers. Jason Foster and I have examined how Tory MLAs managed criticism of that growth in statements they’ve made in both the legislature and the media.

What we found was that MLAs used three narratives to manage the political pressure around TFWs:

1. labour shortages require migrant workers, 
2. migrant workers don’t threaten Canadian jobs and 
3. migrants are not being exploited. 

Of course, none of these things are actually true. They’re merely an effort to legitimize a policy that cheapens labour for employers. The full article outlining this research will soon be available from the Journal of International Migration and Integration but I’m going to cover the highlights today.

Labour shortage
Things start out back in the early 2000s with MLAs asserting that Alberta faces a significant labour shortage caused by a booming economy and an aging population. And migrant workers are the solution to this problem. For example, we have Mark Norris back in 2004 saying there is no alternative to migrant workers:

Mr. Norris: … The simple fact of the matter is that our economy is growing so much faster than our workforce that no matter what we do as a government… it’s not going to catch up. So immigration is an answer to that puzzle. (Hansard, 31 March 2004)

Tory MLAs sometime characterized this shortage as a “good problem to have” that flowed from prudent government policy. We again turn to Mark Norris for some breathless enthusiasm:

Mr. Norris: …this isn’t good news; this is absolutely great news for Alberta. Because of the decision of our Premier and the class of ’93 to signal to the world that we were going to be deficit free and debt free, Alberta has become the business centre of Canada and North America. (Hansard, 13 March 2002)

So a labour shortage is great news and migrants are the only solution.

Canadians first
Despite this so-called “good news” story, there was significant opposition—suggesting Albertans are more politically savvy than our electoral results would lead you to believe. Many Albertans were concerned that migrant workers were displacing Canadian workers and driving down wages. MLAs responded by asserting that the federal Labour Market Opinion (LMO) process ensures migrant workers could only be hired when there are no qualified Canadians available. Here we have then-Minister of Human Resources and Employment Mike Cardinal reassuring us all is well:

Mr. Cardinal: …Mr. Speaker, employers first of all have to exhaust all avenues in relation to getting local employees in place and if they can’t do that, then they have to apply to the federal government’s temporary foreign workers’ program. It’s a challenging and complicated process and can be costly to the employer, so I’m sure and I have confidence in the employers in Alberta that every opportunity will be given first to Albertans and Canadians, aboriginal people, and people with disabilities. (Hansard, 8 March 2005)

MLAs also blamed Canadian workers for labour shortages. For example, then-Minister of Employment, Immigration and Industry Iris Evans suggested that Canadian workers don’t want jobs in remote locations so employers have no choice but to hire TFWs:

Ms. Evans: Mr. Speaker, it’s quite correct that there are frequently workers that are not employed where other jobs exist, and simply put, in many cases these workers refuse or choose not to take jobs in remote or outlying locations. (Hansard, 17 May 2007)

Further, MLAs argued that migrant workers would not displace Canadian workers because migrant workers cost more to employ. And then-Minister of Infrastructure Lyle Oberg asserted that TFWs were a temporary workforce and would depart when they were no longer needed.

Dr. Oberg: …Lastly, the whole idea behind a temporary foreign worker is… to protect our workforce. It’s to take these workers, bring them over here for a temporary period of time when they are needed, when there is the workforce boom that is going on, when we can’t supply it, and then at the end of three years they have to go home. They cannot stay. They do not become landed immigrants. They must go home at that time. (Hansard, 27 April 2005).

When the Tories were asked what contingency plans were in place to deal with TFWs should the economic boom end, they mocked this concern. Then, when the boom (predictably) went bust, the Tories indicated that it was up to employers to determine whether TFWs would be kept on during a work shortage. In fact, then-Minister of Employment and Immigration Hector Goudreau rather bizarrely asserted that preferentially retaining Canadians workers would be discriminatory:

Mr. Goudreau: The federal government does not have specific rules for who should be laid off. All workers in Canada have the same rights, and to lay off a worker based on national origin could be discriminating. If a business is struggling and layoffs are required, the decision as to who is laid off is up to the employer. It’s strictly a business decision. (Hansard, 5 May 2009)

So much for protecting Canadian jobs. 

I don’t see no exploitation
There was also significant concern raised about the exploitation of migrant workers. Basically, migrants depended upon their employment to stay in the country and thus were more vulnerable than Canadian workers. Government MLAs poo-pooed these concerns by asserting TFWs had the same rights as Canadian workers.

Then the stories of exploitation started rolling in. At first, MLAs framed employer violations as unusual events caused by employer ignorance—because that is apparently an excuse for violating the law, if you’re an employer. Here’s Iris Evans again framing the state’s role as mostly to educate employers and workers:

Ms Evans: …We hold workshops for employers, so they know what our expectations are. We, in fact, school the brokers that might want to do business in Alberta about what our laws and our expectations are. (Hansard, 29 November 2007)

When the Alberta Federation of Labour documented widespread violations affecting TFWs, MLAs eventually acknowledged violations could occur but they continued to emphasize the root cause was ignorance of the law. And who was the ignorant party? Why, it was the TFWs themselves. Again with Iris Evans:

While these workers are protected by the same laws as other Alberta workers, they may be more vulnerable to exploitation. They may, for example, be unfamiliar with Alberta law (Iris Evans in Leduc Representatives, 15 August 2008). Glen, B. (2008, August 15). ‘Employers aided by foreign work program’, Leduc Representative, p. 7, Leduc

Yeah, because that’s the reason employer’s don’t pay them overtime or a minimum wage.

Evan’s successor Hector Goudreau also blamed migrant workers for their exploitation. His solution was that employers could provide non English­­‑speaking workers with information about their employment rights:

Mr. Goudreau: Well, Mr. Speaker, with our temporary foreign workers we find that there was a lack of information that was available to them. …The member opposite is asking whether it’s available in different languages. Well, at this stage, Mr. Speaker, and I can say that it is available basically only in English. Those people that are working with them: there are usually people that can do interpretation that are working with the group. There has to be a communications method with temporary foreign workers. Through the boss, then, some of that information is available. (Hansard, 21 April 2008)

This, of course, completely ignores the reality of work where employers have incentives to violate workers’ rights, which is much easier to do if the workers don’t know those rights!

For example, during a 2008 investigation of deaths of two foreign workers in the oil sands, the government discovered that 120 Chinese TFWs had been paid only 12% of their wages. Money was paid into bank accounts opened jointly by each employee and Chinese company. Once the company had created a paper trail indicating payment had been made, it then scooped the money back out.

A year later, government statistics revealed that almost three quarters of the businesses that employed temporary foreign workers and which were inspected were violating employment standards—failing to pay for overtime, statutory holidays and general record-keeping.

Bizarrely, then-Minister of Employment and Immigration Thomas Lukaszuk characterized this report as “…a really good news story,” since it means people are reporting workplace problems to the government. He goes onto to explain that “They know what their rights are, they know what their privileges are as Alberta employees and they're valid.” Under questioning, Lukaszuk then deflected blame onto the federal government.

Mr. Lukaszuk: …First of all, Mr. Speaker, this is not a provincial program; it’s a federal program. This shouldn’t even be asked in this House. We have no means of abolishing the foreign worker program. It’s a federal program. We have no means of opting out of it either because there is no possibility for provinces to opt out. Now, we also have no choice on whether these workers stay or don’t stay over here because visas are issued by the federal government. (Hansard, 18 March 2010)

The Minister did not engage with questions about whether TFWs might not complain because they feared being sent back to their home country.

Evaluating the Narratives 
Each of the narratives MLAs use to deflect criticism around TFWs are very problematic.

The notion that Alberta had a labour shortage ignores that labour shortages indicate a relative (rather than absolute) shortage of workers. Basically, a labour shortage occurs when no more workers are prepared to join the labour force at prevailing wage rates and working conditions. So, higher wages and better working conditions may induce more workers to join the labour force, especially if there are readily available sources of additional labour such Alberta’s aboriginal population, discouraged workers and interprovincial migrants from traditional sending regions such as Atlantic Canada, which continued to have high rates of unemployment during this period.

The government could have left employers to figure out how to induce more workers to join the workforce. The government could also have dampened labour demand by moderating the pace of oil sands development and provincial infrastructure spending. Instead, the government chose to accept employer claims of a labour shortage and encouraged, facilitated and justified the hiring of TFWs. In effect, MLA assertions that there was a labour shortage that could only be solved by migrant workers reflects a policy preference for loosening the labour market and thereby cheapen employer labour costs.

MLAs’ faith in the integrity of the federal LMO process was misplaced. There was lots evidence that the LMO system lacked rigor and was gamed by employers. Of greater concern is that temporary workers aren’t temporary. While individual migrant workers may come and go, Alberta migrant workers have become a permanent and necessary component of the labour market. Further, there is mounting anecdotal evidence that a large number of Alberta TFWs don’t return home when their visas expire—they remain as non-status immigrants.

Growth in the number of non-status immigrants needing “under the table” work may create a long-term loosening of portions of the labour market, thereby limiting wage growth. These issues—a weak LMO process, employers preferring exploitable migrant workers, and the creation of a pool of non-status immigrants—are evident in guest-worker programs across the world. It is unclear if MLAs knew this. But they certainly could and should have known.

Finally, the assertion that employers cannot exploit TFWs because TFWs possess the same rights as Canadian workers proved untrue. There is an important difference between possessing rights and realizing them. Migrant workers face a variety of unique and well known barriers to realizing their rights. For example, their residency is contingent upon continued employment, they effectively cannot change employers, and (in many cases) they face significant language barriers and social isolation. These conditions are not conducive to generating complaints.

The justifying narratives used by Tory MLAs reflect an effort to “manage the message” rather than taking action about the abuse of migrant workers. For example, government MLAs took great pains to highlight that Alberta was in need of “high-skill” workers even though, in 2010, 55% of Alberta migrant workers were classified as low-skilled workers. Focusing on the higher skill workers muted potential political backlash over flooding the labour market with workers in order to suppress wages by evoking images of engineers, skilled construction trades, and computer analysts rather than hotel housekeepers, fast food cashiers and cooks. This is an act of political sanitization.

It also shielded employers from public accountability for their decisions to utilize vulnerable labour in ways that suppress wage growth and allow union avoidance. Pairing the argument that TFWs were necessary and unavoidable with the assurance that employers will act fairly and legally erects a rhetorical shield for employers against public wrath over the issue. In this way, the government is legitimizing employer behaviour that might otherwise be considered unacceptable by the public.

-- Bob Barnetson

Worksafe student videos blame the worker

A few weeks back, the Alberta government announced the winners of its annual Work Safe student video contest. According to MLA Matt Jeneroux:

The Work Safe Alberta student video contest is a great way for young Albertans to think about workplace health and safety. Young workers can have an invincible mentality while on the job, and it’s important to understand both the real dangers and the resources available to them.

To be fair to the students, the quality of the videos is pretty high. The recurring difficulty with these videos is that each new batch tends to blame the worker for his or her injuries. This may well reflect the instructions the students were given and/or the selection criteria used by the government.

While it is true that workers need to be mindful of potential dangers, the videos largely ignore the obligation of employers to identify and control hazards (although the second place video does contain a nod in this direction). The videos also tend to show worker injuries as the result of workers making stupid choices.

I appreciate that these videos aren’t the final word on workplace safety. Yet their tendency to blame the victim largely accords with the government’s own safety promotions efforts. 

Is rewarding students for internalizing blame for workplace injuries really in the public interest? Or is it just in the interests of a government that does a poor job of injury prevention and the interests of employers who organize work unsafely?

Asking students to grapple with those kinds of questions would make a much more valuable contribution to young people’s understanding of workplace safety in Alberta.

-- Bob Barnetson

Refusing unsafe work in Alberta

When workers refuse unsafe work in Alberta, the Occupational Health and Safety Act first requires the employer to investigate. The worker can then appeal to an OHS officer and, ultimately to the OHS Council. I don’t have any stats on refusals in Alberta, but my sense is that they are rare and appeals to the OHS Council are rarer. For that reason, decisions by the Council on right to refuse disputes make interesting reading. I don’t believe this decision is posted yet but you can often find them here. 

An April 10, 2013 decision examines a January 2011 refusal of unsafe work by nurses in Grande Prairie for which they were disciplined by Alberta Health Services (looks like a suspension and letter of reprimand—a bit hard to tell). For those from out of province, Alberta’s OHS Act requires workers to refuse unsafe work, rather than simply giving them the right to do so. Workers who fail to refuse can be punished under the OHS Act with fines up to $500k or 6 months in the clink for a first offense!

The facts are that the patient was “certified” under the Mental Health Act and had previous injured security staff during a January 12 visit (while being taken down). The door to the “seclusion room” was apparently “kicked out” by the patient during a January 15 visit (he would have escaped if nurses hadn’t braced the door against him with their bodies) and he threatened to kill the staff. Further, the emergency button to summon help was not well located. The security guards had inconsistent training and abilities to subdue the patients. And there were also no restraints in use or places to lock the restraints to.

The upshot is that the nurses were concerned the patient posed a danger to other patients in the wing as well as to themselves. So, they hustled all of the other patients out of harm’s way, continued to nurse them, and refused to work with the patient they deemed to be a threat.

The Council determined that the employer did not assign additional security personnel immediately or consistently. The employer also failed to make the required written record and provide it to the nurses. Indeed, there was no policy on work refusals. The supervisor had no advice for the nurses about how to handle the patient and threatened to report one of them to her professional association if the nurse refused unsafe work.  Eventually, the employer sedated the patient, added three (or four or five, depending on who you believe) security staff, and transferred the patient out of the facility.

The discipline apparently flowed from a continued refusal to work because the employer had not followed through on its legislated requirements to investigate and inform the employees about what the employer did to control the hazard (I’m paraphrasing a bit). Basically, the workers couldn’t be sure the work was safe because the employer pooched the investigation so they continued to refuse and got disciplined for it.

The OHS Council overturned the discipline (two years later). This decision shows us several things:

1. Even employers with sophisticated OHS capacity can have unsafe workplaces, fail to take effective action on serious workplace hazards, and persecute workers facing imminent danger. Alberta Health Services (AHS) is the largest employer in Alberta. If AHS cocks things up so badly, what kind of OHS infrastructure can we expect the 56% of Alberta employers with fewer than 5 workers have?
2. Workers who exercise their right to refuse (action the OHS Act compels them to take under threat of imprisonment) can face discipline from their employer for complying with the law. Non-unionized workers would be unlikely to have the resources necessary to fight their employer. How effective can we expect OHS Act to be if basic safety rights are disrespected by the employer and the officer’s investigation is in error?
3. At one point, the employer argues that the conditions faced by the nurses were normal aspects of their employment as psych nurses thus they had no right to refuse. There is some superficial truth to this—psych patients can be a handful. Yet can the purpose of the OHS Act possibly be to compel these workers to perform duties while being threatened with death by a mental patient with a pattern of violence in a workplace with no reasonable security precautions? Obviously not.

An interesting example of why worker safety rights, while important, are weak rights. They are hard and dangerous for workers to exercise, which means workers will often trade off their safety against the spectre of punishment by the employer.

-- Bob Barnetson

The lessons of Alberta's jail-guard strike

It has been a fairly interesting week in Alberta labour relations, with prison guards staging an illegal strike over unsafe working conditions. The lesson of this strike is that employers usually get the union that they deserve. For example:

• If an employer is unresponsive to serious concerns about workplace health and safety, this will tend to (further) drive workers together because workers realize they can only rely upon one another.
• If an employer unjustly disciplines workers in such a heated environment, this can trigger job action, including a wildcat strike.
• If the employer acts in a high-handed and arrogant matter during the strike, other workers may join in and the strike can spread.

At present, the government is engaged in punitive post-strike action against the union (e.g., seeking dues suspension, costs for the strike) as well as apparently reneging on its agreement not to persecute workers involved.

There are a couple of potential explanations for this behaviour. The most rational reason (and this may be overly charitable) is that the government is seeking to increase the cost of illegal strikes to deter unions from staging them (reflecting that illegal strikes tend to be highly effective). This thinking reflects a profound misunderstanding about the internal dynamics of unions and this strike in particular. Absent egregious employer misbehaviour, union leaders are generally unable to trigger an illegal walkout. Workers aren’t mindless drones that the union manipulates. Generally (although not always) illegal strikes happen (often to the union’s surprise and dismay) in response to long-simmer problems and a catalyzing incident (both of which reflect employer decisions).

Further, once union members’ blood is up, it is often difficult or impossible for the union to control the illegal strike. Unions are political and democratic organizations and leaders must be responsive to the demands of their members (if they want to stay leaders). Smart union leaders try to ride and channel such action into something constructive (which is basically what the Alberta Union of Provincial Employees (AUPE) did). Given this dynamic, fines and punitive actions are unlikely to significantly affect the course of an illegal strike. AUPE president pretty much admitted this when he said: “Fines are the cost of doing business.”

A second (and certainly not mutually exclusive) explanation is that the government is lashing out after a week of damaging negative publicity. Setting aside that much of this was self inflicted (to paraphrase the president of the AFL, would you put a pyromaniac in charge of a forest fire?), the Tories are already in electoral trouble due to scandals and incompetence, with support eroding from both flanks. They are (quite rightly) concerned about the potential impact of further strikes—especially if any of the opposition parties can figure out a way to convert strike support into riding-tipping votes.

What the government ought to be more concerned about is that their “management” of the strike took the province very close to the precipice where the government looses control. Imagine, for a moment, that Deputy Premier Thomas Lukaszuk had continued to egg on AUPE members and the strike had gone on or expanded. Both were possibilities—something the government must have had an inking of since they sent a note to all employees saying (I’m paraphrasing) “this strike is illegal so simmer down”.

If contempt of court fines weren’t effective at ending the strike, at some point a judge would have gotten pissed off and ordered arrests of peaceful strikers—who also happened to be law-enforcement personnel. At this point, the government would have to face two questions: (1) would there have been a general strike, and (2) would police officers (most of whom are unionized) have balked at arresting fellow cops?

Let’s deal with the general-strike question first. This sounds a bit unlikely, given the general state of Alberta’s labour movement. But dig a little deeper. At the Alberta Federation of Labour (AFL) convention last weekend, a motion directing the AFL to plan for a general strike if right-to-work legislation was defeated, but by such a narrow margin that they actually had to do a vote count (I think it was 153 to 147). Basically half of the delegates were prepared to direct the AFL to trigger a province-wide strike about an issue that is a ways off. If provoked, I would think a general strike is quite possible—and that was the subtext of the AFL press conference yesterday deriding the government’s post-strike attacks on AUPE.

On the second question, I think it is likely that at least some police officers would have declined to arrest fellow cops who were peacefully protesting serious health and safety issues. And at that moment, the government’s control over the province would be lost. While government is powerful, it is in control only when (1) we all agree to go along with its decisions and (2) the government can compel dissents to comply. Widespread disobedience and no ability to compel compliance means there has effectively been a revolution (like the Ukraine’s orange revolution of a couple of years back).

Pushing the populace to the point when the legitimacy of government is imperiled or lost (and this was the direction things were going) just to look tough is massively irresponsible. Certainly it demonstrates fundamentally poor political judgment by the Deputy Pyro… errr… Premier. The complete absence of the Premier in such a situation is particularly troubling.

One would hope the government would have learned some lessons from the festivities of the past week. Yet the stories emerging from the remand centre, where the Deputy Minister apparently threatened discipline and termination of the strikers (despite government promises to the contrary) suggest otherwise. I don’t think any of the current crop of MLAs have any sense of what an ugly strike is like. Lukaszuk was about 15 when Gainers went down and the Premier maybe 20. Hopefully they don’t need to learn this lesson the hard way.

-- Bob Barnetson