Is Bill 45 fascist?

This morning CBC Radio called me to do an interview about Bills 45 and 46—the Alberta government’s recent legislation aimed at punishing illegal strikes in the public sector and imposing a wage settlement on civil servants. I had a scheduling conflict so we pre-taped the interview.

When I was listening to the final interview, I found they had edited out a part where I indicated that Bill 45 was anti-democratic, both in its content (it stifles free speech and civil disobedience) and the manner of its passage (the Tories are ramming it through with minimal debate despite there being no need for haste).

After querying CBC about the edit, they explained that they found my use of the term “fascist” to be “too strong for the conversation we were having.”

Now, hell, I like irony.

For example, when the province promised a 2% boost to PSE funding, delivered a 7% cut, and then restored a third of the cut and the Deputy Premier tweeted “promises made, promises kept”, I had a good chuckle. (At least I assume he was being ironic.)

But censoring criticism of legislation that itself seeks to censor criticism is a bit much, no? Generally I like the CBC crew—they tend to be pretty balanced and open to hearing opinions you don’t hear amid the mindless community boosterism of most local media. So I was a bit taken aback at the censorship.

After giving it some thought, it seems to me that the term fascist tends to make folks pretty anxious. During the interview, for example, CBC played a clip from NDP leader Brian Mason wherein he danced all over the map to avoid directly saying the legislation was fascist (“unprecedented in Canada”, “Draconian”, etc.). Maybe internet angst over Godwin’s law (where the first person to invoke the Nazis looses an argument) has made us leery of the term fascist.

So was I took quick to hit the Nazi button when I characterized Bill 45 as fascist?

Well, fascism is a complex subject. Yet common features of fascist governments include the suppression of trade union liberty, using parliamentary politics to destroy parliamentary democracy, and a police apparatus that prevents, controls and represses dissidence and opposition.

With Bill 45, the Redford Tories are using parliamentary processes to repress trade union liberty. Specifically, Bill 45 will dramatically penalize unions, their organizers and their members for undertaking acts fundamental to trade union activity and democratic discourse, such as talking about illegal strikes and expressing political protest through collective actions (such as illegal strikes).

Bill 45 draws the Labour Board and the Court system into the mix by compelling them to impose outrageous and disproportionate sanctions upon workers, journalists, academics and trade unionists for under-taking Charter protected actions (anyone remember freedom of speech and freedom of association)? Bill 45 clearly violates such constitutional protections but, until struck down, it will be the law of the land and thereby repress dissidence and opposition.

Indeed, Bill 45 is clearly political retribution against the trade union (and AUPE in particular) movement for embarrassing the government with wildcat strikes in health care and correctional services. The average Alberta is going to see that meaningful protest will result in subsequent and severe persecution. That can’t be good for democratic discourse.

And Bill 45 will be rushed through the parliamentary process as quickly as possible, thereby stifling debate. There was no real notice of this legislation. And debate has been truncated. There is no real reason for this rush. There aren’t any wildcat strikes going on or looming (although Bill 45 may in fact trigger them…). The rush here is entirely political—the government is seeking to minimize the debate and the political damage the legislation will cause them.

There are lots of historical examples of union suppression among fascist regimes. Hitler arrested trade union officials and confiscated their funds in 1933 because they posed a threat to his power (hmmm… sounds a bit like Bill 45). In Francoist Spain, the government directly set wages (which is what Bill 46 does) and strikes were forbidden (which the Public Service Employee Relations Act does). Illegal strikes were met with brutal police repression, including imprisonment and beatings (Bill 45 doesn’t go quite that far but its multiple sanctions will cripple unions). In Pinochet’s Chile, trade union rights were restricted and dissidence was repressed. Ditto Communist Poland throughout the 1980s. The list goes on and on.

The point of these examples is not to equate the Redford government with the totalitarian regimes in Chile, Spain and Germany, but rather to demonstrate that trade union repression—through limits on unions’ ability to carry out associational and expression activities—is consistent with fascist treatment of trade unions. And quite contrary to the values enshrined in Canada’s Charter of Rights and Freedoms.

While characterizing Bill 45 as fascist may well make CBC’s gentle listeners uncomfortable, it is a discussion that is necessary. And censoring criticism of a bill that censors criticism is both ironic and profoundly undemocratic.

-- Bob Barnetson

Bill 46 attacks nursing moms, new dads, the sick and the injured

Bill 46 sets out what the annual cost-of-living adjustment (COLA) will be for public servants from April 1, 2013 to March 31, 2017. In this way, the Tory government has displaced arbitration as the way to resolve collective bargaining impasse in the public sector with employer fiat via legislation (which is likely a violation of the Charter protections associated with the freedom to associate, but let’s move on for the moment).

The COLA set out in the legislation are:

• 0% in 2013
• 0% in 2014
• 1% in 2015, and
• 1% in 2016

To “sweeten” the deal, the government will also make a one-time payment of $875 to each employee on April 1, 2014 in lieu of a COLA. Unions and workers generally don’t like one-time payments because they (naturally) don’t carry forward into future years and thus the inflation that an actual COLA is supposed to offset erodes the purchasing power of the employees’ wages. Employers, conversely, love one-time payments because they are much less expensive (in the long-term) than a percentage increase in salary.

One of the interesting features of Bill 46 is that not every employee is eligible for this one-time payment. Section 3(3) of Bill 46 says:

3(3) An employee is not eligible to receive a lump sum payment under section 2(d) if, on April 1, 2014, the employee is
 (a) on a leave of absence and receiving workers’ compensation benefits,(b) on a leave of absence and receiving payments under the Government Long Term Disability Plan referred to in Article 33A of the Master Agreement,(c) on parental or adoption leave as described in Article 40 of the Master Agreement,(d) on maternity leave as described in Article 40A of the Master Agreement, or(e) on a leave of absence as described in Article 46 of the Master Agreement, and that leave began before April 1, 2013.

Basically, if you are a nursing mom on mat leave, or a dad at home with a new baby on parental leave, or you have MS and you’re on a medical leave, or you lost a hand on the job and are on workers’ comp, you don’t get the $875, even when you return.

Now, if the 2014 payment had been a proper COLA, you likely would receive it on your return to work. This is because a COLA isn’t about performance, it is just to ensure inflation doesn’t erode your wages.

Indeed, if you didn’t receive it, the employer would be violating s.7 of Alberta’s human rights legislation. For those Tory MLAs who didn’t read the law they passed, it says:

7(1) No employer shall... 

(b) discriminate against any person with regard toemployment or any term or condition of employment,because of … gender, physical disability, mental disability, … family status… .

And, of course, there is that awkward s.15(1) of the Charter that prohibits governments from discriminating:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Yet refusing to pay the $875 to people on leaves which reflect underlying protected grounds (disability family status and gender) also violates both Alberta’s human rights legislation and the Charter. Oops. So these provisions of Bill 46 should be easy to strike down. (Oops, I said “strike”—hope I don’t get fined under Bill 45!)

What is surprising is that the Premier and the Minister of Human Services (both lawyers) would somehow fail to grasp this fairly basic legal problem with Bill 46.

Vastly more troubling is that Alison Redford and Dave Hancock seem to have missed the moral issue here. As a society, we don’t discriminate against the sick and the injured. And we don’t discriminate against nursing moms and new dads.

Unless they’re union members, I guess.

-- Bob Barnetson

Initial thoughts on Bill 45

I have been reading Bill 45, which proposes significant new sanctions for illegal public sector strikes. There are many concerning (and frankly chilling) aspects of this Bill.

Here is an example (made up off the top of my head as I read the Bill) that affects all Albertans (not just public sector union members).

Section 4(4) of the Bill says:

(4) No person shall counsel a person to contravene subsection (1) or (2) or impede or prevent a person from refusing to contravene subsection (1) or (2).

Sections 4(1) and (2) are basically prohibitions on illegal strikes or threats of strikes:

4(1) No employee and no trade union or officer or representative of a trade union shall cause or consent to a strike.
 (2) No employee and no officer or representative of a trade union shall engage in or continue to engage in any conduct that constitutes a strike threat or a strike.

Strike and strike threat are pretty broadly defined in ss.1(1)(j) and (k) of the Bill. I won’t list all of the possible definitions here (you can read Bill 45 yourself). The key issue here is that if someone uninvolved with a union (say a newspaper editor or an academic) says “The workers’ only recourse is an illegal strike” that could well be construed as counseling workers or trade unionists to violate ss.4(1-2), which is a violation of s.4(4).

So what happens to the editor or academic? Well, s.18(1) says that if you violate s.4(4) you are guilty of an offence. Under s.18(1)(d), the editor or academic would be liable for a fine of $500 a day per day of the contravention. Section 20(a) says that prosecution may occur within 1 year of the last day the offense occurred.

So riddle me this.

If Bill 45 had been the law before the jail-guard strike went down this spring and I made a blog post (primarily aimed at students) that suggested the guards had no choice but to strike since the employer would not address the health and safety issues at the (then) new remand centre (which is a reasonable conclusion to draw) and the employees illegally struck and I left the post up, I would remain open to prosecution for an offense indefinitely for a fine of $500 a day?

Setting aside the absurdity of the timelines, the basic offense (expressing an opinion) is protected behaviour under s.2 of the Charter and s.4(4) (or perhaps 18(1)(d)) is unlikely to be saved because it is an unreasonable violation of my freedom of speech. Of course, I'd have to challenge that in court and the government would likely drag it out to the Supreme Court (using my tax dollars against me while forcing me to fund the cost of my appeal!).

More broadly, many provisions of the Bill violate Charter-protected freedoms of speech and association. Further, some sections of the Bill make the Minister in charge effectively judge, jury and executioner. For example, s.16(1) allows the Minister to fine a civil servant a days wages for making an offhanded comment on twitter or in the coffee room that “Well, I’m not gonna work that hard of they are gonna treat me this badly”, which constitutes a strike threat under ss.1(1)(k)(iv) and 1(1)(j)(iv)!

The definition of strike threat (s.1(1)(k)) basically allows the government to complain to the Alberta Labour Relations Board (s.5(1)) about behaviour that has not happened (“but they’re talking about a strike…”) and the Board could direct the union officials to stop discussing things. Um, hello, freedom of speech?

And s.6(1) would then allow the employer (who is also the government) to suspend dues collection for three months plus one additional month for each day the chit-chat continues! The government could also apply to the courts to impose punishing ($1million a day!) fines on unions under s.9(1) “abatement orders”

A quick read of this Bill reveals it to be outrageously heavy-handed and likely not compliant with the Charter. So what then is its purpose?

Well, some of it is payback for the spring jail-guard strike that embarrassed the government and, more specifically, the Deputy Premier.

And some of it is designed to limit AUPE’s ability to resist Bill 46 (which displaces collective bargaining by legislating the employer’s settlement).

And some it is just plain mean and arrogant.

Of course, since the Tories are going to ram it through in two days, none of this will be debated.

Wow.

-- Bob Barnetson

New labour legislation in Alberta

Two interesting development in Alberta labour relations today.

Bill 46 imposes a contract settlement on public service workers unless they and the province reach an alternate agreement by January 31, 2014. The imposed settlement sees cost of living adjustments 0%, 0%, 1% and 1% with a $875 one-time payment in the second year. 

  

In effect, the government has decided to avoid interest arbitration (which is how bargaining impasse is settled in the public sector) and simply legislate its most recent offer. Union leaders and rank-and-file members are pissed, but they also face Bill 45, which sets out severe consequences for illegal job action.

In Bill 45, illegal strikes in the public sector (which have been highly effective at compelling the government of Alberta to make fair contract settlements) will be punishable by automatic dues suspensions, civil liability, prosecutions and administrative penalties. This Bill is mooted as a response to the illegal jail guard strike of earlier this year. But, of course, it will significantly increase the cost to unions and union members of all manner of illegal strikes.

Presumably there will be the usual bluster and court challenges and whatnot. The bigger picture though is that, with strikes illegal and illegal strikes basically so costly as to be unavailable, the government has channeled employee dissatisfaction into strategies of (1) exit and (2) neglect. Basically, frustrated workers are either going to leave for other jobs or they are going to quietly renegotiate their wage-effort bargain in the workplace. As one government employee who is hardly a union hard-liner told me, “In the last six months the government has frozen my wages and attacked my pension plan and I’m pissed off.” 

One of the knock-on effects of alienated workers is that quality of the work performed by government workers is likely to decline. Ministers may well find themselves with a lot more political problems to deal with and a lot less useful advice from civil servants. More interestingly, there may even be individual or small-group efforts at resistance--because employees have no other way to express their frustration and no confidence that their collective bargaining process is meaningful.

On the upside, this move should also permanently alienate the moderate voters and trade unionists who supported Alison Redford against the Wild Rose in the last election, leaving the PCs and the Wild Rose to duke it out for the support of right wingers and ensure one or the other forms a minority government.

-- Bob Barnetson

Look out below!

Residential construction is one of the most dangerous industries in Alberta. Here is a picture I snapped the other days of some roofers working on a neighbour's house. Note they are on bare plywood with snow cover more than 5 meters up and no one has a safety harness (in fact, there was no safety equipment at all and their handling of the nail guns was crazily cavalier).

Sadly, this is pretty typical of the industry. I'd like to name names, but the guys had no sign on their work truck as to their company. They also worked in the dark (using head lamps!) while it was snowing--somedays working more than 13 hours.

-- Bob Barnetson

Presentation: Farm worker safety exclusions

No Right to be Safe: Justifying the Exclusion of Alberta Farm Workers from Health and Safety Legislations

Bob Barnetson, Associate Professor of Labour Relations

Association for Canadian Studies in the United States Bi-ennial Conference

20 November 2013, Tampa

Introduction

Good afternoon. I’m Bob and I teach labour relations at Athabasca University in the Canadian province of Alberta. What I’d like to talk to you about today is how Alberta legislators justify excluding the vast majority of Alberta farm workers from the basic safety rights that all Canadian workers take for granted.

In short, government members of the Legislative Assembly (we call them MLAs for short) use three narratives. They say safety education is better than regulation. They say farms can’t be regulated. And they say that farmers don’t want and can’t afford regulation.

Unfortunately (for the MLAs) when you dig into these narratives, they all turn out to be bunk. Which raises the difficult question of why MLAs rely upon narratives that simply aren’t true to justify such exceptional public policy. While I don’t want to give away the ending of my talk, the bottom line is that there are significant electoral rewards associated with denying farm workers basic safety rights.

Alberta Agriculture

So let’s start with a quick bit of background. Alberta is one of Canada’s 10 provinces. For those of you familiar with the map of Canada, Alberta is the second one from the left. Alberta is about the same size as Texas and the population is just over 4 million, including about two-and-a-quarter million workers.

Alberta is governed in the Westminster parliamentary tradition—the party that gets the most seats forms government. The right-wing Progressive Conservative party has formed government since 1971. An important part of the conservative predominance is support from rural Alberta, which has been over-represented due to gerrymandering of electoral boundaries.

Like Texas, Alberta’s economy is associated with oil and agriculture. The energy industry is single largest sector of the economy, responsible for 23.5% of GDP in 2009. When you add in associated sectors, like finance and real estate and construction, they comprise half of Alberta’s economic activity. By contrast, agriculture contributes about 3% of Alberta’s GDP and that percentage is shrinking.

There are about 43,000 farms in Alberta. At a very high level,cattle ranching is important in the southern part of the province while grain farming predominates in the central and northern regions. Average farm size is roughly 1100 acres—slightly bigger than the Canadian average and growing. That said, there is significant variation between farms, with both very small and very large operations with a distinct and long-term trend towards larger operations.

About 30% of Alberta farms report paid labour. This may be an over-estimate because we can’t break out family and non-family wage earners. It is difficult to tell, but it looks like there is stratification of employment: many farms have no or few employees, while a few larger farms have multiple employees. Overall, there are 15,000 farm workers—that is to say, employees. About 70% are men and about 3000 were international migrant workers. And its these 15,000 workers I’d like to talk about today.

Alberta farm workers are excluded from most of Alberta’s statutory employment rights, including labour standards, the laws about unionization and collective bargaining, and mandatory workers’ compensation. They are also excluded from the ambit of the Occupational Health and Safety Code—which is what I’d like to focus on today.

This occupational health and safety (OHS) exclusion means that the vast majority of Alberta farm workers have no right to know about workplace hazards and no right to refuse unsafe work without fear of job loss—rights that form the foundation of workplace health and safety throughout Canada. This exclusion also precludes that state from monitoring occupational hazards, investigating injuries and fatalities, and preventing injuries through inspections.

Since 2000, this farm-worker exclusion has been the subject of increasing criticism. And the criticism dramatically escalated in 2008 following the release of a public fatality inquiry into a feedlot worker’s death. In this report, Judge Peter Barley recommended granting farm workers basic health and safety rights, noting that “No logical explanation was given as to why paid employees on a farm are not covered by the same workplace legislation as non-farm employees.”

To help us understand how government MLAs have justified denying farm workers basic safety rights, I subjected MLA statements in the legislature about farm safety between 2000 and 2010 to narrative analysis. And three narratives emerged. First, MLAs said education is better than regulation. Second, MLAs said farms cannot be regulated. And third, MLAs said Farmers don’t want and can’t afford regulation. It is useful to take each narrative in turn and probe its validity, so let’s start with the first narrative.

Education is Better Than Regulation

Throughout the period of study, MLAs emphasized that education was better than regulation. As the issue of farm injury became more politically charged after 2005, government members began explicitly linking education with injury reduction. For example, then-Minister of Agriculture Doug Horner said:

Mr. Horner: We’re trying to make sure that farmers have the right information about what is safe practice and what are some of the issues that they should be aware of on-farm so that we don’t have this number of fatalities (Alberta 2006a).

In effect, Horner is asserting that making information available will reduce farm injuries. This putative relationship bolsters the notion that the state’s role in farm safety should be primarily educative. This was justified by asserting that regulation had to be exceptionally intrusive in order to work. For example, in 2007, then-Premier Ed Stelmach said:

Mr. Stelmach: … just because we have regulations does not mean that somebody is going to follow them. We have many regulations. We have many laws. We have laws that say that people should stop at a stop sign, and they don’t. So what is (the member of the opposition) saying? That we put a policeman at every intersection in this province to prevent people from not following the rules (Alberta 2007a)?

The key question here is whether education is better than legislation at reducing farm injuries. There are no studies that compare these two approaches. But there is lots of relevant research that can help us form an opinion. For example, 2003 and 2008 Canadian studies found education had no impact on farm safety practices, hazards or injury outcomes. This broadly accords with US findings. This tells us that education only approaches don’t reduce injuries.

Coming at this question from the other way—does legislation reduce injuries?—the data suggests that, when legislation is combined with enforcement, there are reductions in injuries in agriculture and other industries. Indeed, there is a wide body of literature demonstrating regulation reduces injuries, including mandatory bicycle helmet and child car seat use and prohibitions on firearms, domestic violence, and impaired driving.

In short, there is no evidence that education reduces occupational injuries. And there is lots of evidence that regulation does work. And that tells us that the “education is is better than regulation” narrative is false.

Farms Cannot be Regulated

A second explanation for denying farm workers basic safety rights centres on the assertion that the unique nature of (at least some) farms makes regulation unworkable. Essentially, MLAs argued that farms are often mixed-use locations (they are homes and workplaces) and thus can’t be regulated. For example, then-Minister of Agriculture Doug Horner said:

Mr. Horner: … Farms are unique in that they are work sites, they’re homes, and they’re places where families live, work, and play, so they can’t be treated the same way as a construction site (Alberta 2006a).

A variation on this argument is found in MLAs’ efforts to distinguish between so-called “family farms” and “corporate farms”. Then-premier Stelmach first brings this up in 2007 when he says:

Mr. Stelmach: Mr. Speaker, this matter has come up in the House a number of times with respect to protection that farm workers have. There are, of course, those working on family farms and those working on corporate farms (Alberta 2007a).

But the nature of the difference between family farms and corporate farms is unclear. Does it have to do with size? Or ownership? Or corporate form? Or the employment of waged labor? No one ever says.

Subsequently, MLAs resisted a call to regulate “big industrial farms that employ dozens of people” by equating corporate farms with family farms. Then-Minister of Agriculture George Groeneveld stated:

Mr. Groeneveld: Mr. Speaker, corporate farms or industrial, whatever the hon. member wants to call them, are still managed pretty much by families; in fact, in the feedlot industry pretty much entirely. Safety is a personal commitment between employees and employers. They must agree to work together to create a safe workplace. Employees, indeed, are treated like family (Alberta 2008d).

So now there is no difference? Then MLAs changed horses again, emphasizing the unique nature of the agricultural workforce. Then-Minister of Employment and Immigration Thomas Lukaszuk said:

Mr. Lukaszuk: … A farming environment is not your regular, standard industrialized environment. You have family members working. You have relatives working. You have neighbours helping neighbours (Alberta 2010a).

This statement asserts regulating a workforce comprising immediate and extended family members and neighbors is inappropriate. Interestingly, only 18 months earlier, Lukaszuk had voted against an opposition motion to introduce amendments to the Occupational Health and Safety Act to protect paid farm workers while continuing to exempt family members and other unpaid labourers. One of the reasons MLAs gave for not supporting this amendment was because it differentiated workers based upon their family and employment status.

In this narrative, MLAs make three assertions. First, MLAs say agricultural operations on mixed-use locations cannot be regulated. There is no explanation for this difficulty. All other provinces somehow manage this. And, in fact, Alberta regulates some mixed-used agricultural operations (e.g., greenhouses, nurseries, and sod and mushroom farms). And Alberta subjects farms to all manner of environmental and health regulations. So there is no insurmountable regulatory barrier.

Second, MLAs say there is a meaningful difference between “family” and “corporate” farms. Yet they can’t establish any criterion by which we can distinguish family farms from corporate farms and, indeed, they admit that corporate farms are often family run. What this suggests is that the family-corporate dichotomy is a rhetorical device designed to sidetrack debate, rather than posing any real impediment to regulation.

Third, MLAs say the presence of family members and neighbours on the farm prevents regulation. Now why family members and neighbours don’t warrant the same protections as paid workers isn’t clear. But the more salient point is that every other Canadian jurisdiction somehow manages to regulate farm work despite the presence of friends and family.

More troubling is that MLAs objected to the regulation of only paid farm workers in 2009—a plan which seemed to address their friends and family concerns. Yet MLAs opposed it by saying that all workers must have the same rights. The paradoxical effect of refusing to distinguish among groups of farm workers (in order not to deprive any group of their rights) is that all farm workers are deprived of basic safety rights. Overall, then, this narrative is also bunk.

Farmers Don’t Want and Can’t Afford Regulation

The final argument that farms can’t be regulated, according to MLAs, is that farmers don’t want and can’t afford regulation. This narrative is sometimes discussed in terms of the economic importance of agriculture, the cost of regulation and the specter of farm bankruptcy. In effect, MLAs assert the government must trade off worker safety to maintain the profitability of farms.

The “farmers can’t afford regulation” portion of this narrative appears three years after an outbreak of “mad cow” disease caused significant hardship among cattle producers in Alberta. The resulting financial pressure was cited as a reason farms couldn’t afford to protect their workers’ safety. For example then-Minister of Human Resources and Employment Mike Cardinal said:

Mr. Cardinal: … if it’s going to impact the farm family in particular, we would have to consult the farm families out there and the farm industry to ensure that whatever is put in place does not impact the farm family negatively because the farm families right now, as you know, are challenged. There are a lot of bankruptcies out there. A lot of farm families are close to bankruptcy right now (Alberta 2006c).

After 2006, explicit use of “farmers can’t afford regulation” largely fell into disuse, perhaps reflecting improving fortunes. Yet the threat of bankruptcy remained a reason to reject regulation until the end of the period under study. For example, in 2010, then-Minister of Employment and Immigration Thomas Lukaszuk said:

Mr. Lukaszuk: … the Minister of Agriculture and Rural Development and I are looking at the (Barley) report, and we will make recommendations that achieve two things: keep our farmers safe but also keep them in business because the only way to make sure that a farmer doesn’t get hurt is just to put him out of business, and we are not willing to do that (Alberta 2010b).

Government members have also said that “farmers don’t want regulation.” For example, in 2006, then-Deputy Premier Shirley McClellan (herself a farmer and former Minister of Agriculture) indicated farmers direct government policy on regulation:

Mrs. McClellan: … I know that if the producers, in their wisdom not ours, were to come forward in a majority view to the minister of agriculture, he would bring that forward to this table. … But I must inform the hon. member, being a part of the agricultural community myself, that they are very independent thinkers, and they like to make their decisions and ask us to carry out policy they believe is in their best interest (Alberta 2006d).

So in this narrative, MLAs assert farmers can’t afford and don’t want regulation. The cost of compliance with the Occupational Health and Safety Act is unknown. And it is likely going vary between farms. But the absence of a definitive cost analysis undermines the claim that “…agriculture cannot afford (safety regulations) at this time…” (Alberta 2006d). Farmers in other jurisdictions appear able to bear this cost.

Now, if we accept the assertion that regulation is cost-prohibitive, then we must also accept its underlying premise: the state should permit businesses that cannot afford to comply with safety standards to avoid them and, in doing so, the state should facilitate the transfer of production costs (in the form of workplace injuries) onto workers, their family and society. Enabling farmers to externalize costs via this statutory exclusion seems inconsistent with the government’s stated goal of having no agricultural fatalities or injuries.

That said, the main effect of the “farmers can’t afford regulation” narrative is that it displaces concern about worker safety with concern about farm profitability. In this way, the desire of agricultural producers (i.e., “farmers don’t want regulation”) is transformed from a bald statement of self-interest into an unverifiable (but plausible) rationale (“they can’t afford it”) for maintaining the farm worker exclusion. Overall, this narrative appears to express a policy preference rather than set of facts.

Discussion

So, given that the MLA narratives used to justify denying farm workers basic safety rights lack validity, why then does the government continue to maintain the exclusion? Perhaps MLAs believe these narratives, despite their obvious flaws. An alternate (or complimentary) explanation is that MLAs may also find them rhetorically useful in resisting pressure to regulate farm safety. What I’d like to do now is explore the electoral rewards that may be attached to resisting additional regulation.

Rural constituencies in Alberta almost always elect Progressive Conservative candidates to the legislature—perhaps rewarding Conservative MLAs for the slew of public funds that allows rural Albertans to maintain their communities in the face of urbanization. And Conservative governments have ensured electoral boundaries were drawn so there have been a disproportionately high number of rural ridings—it has been almost impossible to form government without rural support.

Opposing extending safety rights to farm workers is consistent with a symbiotic relationship between Conservative MLAs and rural voters. Some indirect support for this conclusion is evident in third narrative: that an employer doesn’ t desire to be subject to workplace safety regulation is hardly surprising but that farmers are able to actualize this desire is really unusual. They are one of the only groups able to do this. This suggests farmers are utilizing some lever to maintain their preferred status in the face of pressure on MLAs to give farm workers basic safety rights.

The narratives MLAs use provide the MLAs with some protection from criticism that they are enabling employers to expose workers to hazards that workers in every other occupation don’t face. These narratives also legitimize employer decisions to trade workers’ health for profit. Pairing the assertion that farmers can’t afford regulation with the assertion that education provides adequate protection 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 and immoral by the public.

-- Bob Barnetson

References

Alberta, Agriculture and Rural Development, Seeing Success: Increasing Learning Opportunities in Rural Communities. [Edmonton], no date.

Alberta, Office of the Chief Electoral Officer Elections, 1997 General Election Report. [Edmonton], 1997

Alberta. Occupational Health and Safety Act Farming and Ranching Exemption Regulation. RSA 27/1995 [Edmonton, AB]: Queen’s Printer, 2001a.

Alberta, Office of the Chief Electoral Officer Elections, 2001 General Election Report. [Edmonton], 2001b.

Alberta, Office of the Chief Electoral Officer Elections, 2004 General Election Report. [Edmonton], 2004a.

Alberta. MLA Steering Committee on Rural Development, Rural Alberta: Land of opportunity. [Edmonton], 2004b.

Alberta, Alberta Hansard, 11 May 2006a (Mr. Horner, PC) pp. 1520-1521.

Alberta, Alberta Hansard, 18 May 2006b, (Mr. Cardinal, PC) pp. 1671-1672

Alberta, Alberta Hansard, 31 August 2006c (Mr. Cardinal, PC), pp. 1847-1848

Alberta, Alberta Hansard, 18 May 2006d (Mrs. McClellan, PC), p. 1672

Alberta, Alberta Hansard, 22 March 2007a (Mr. Stelmach, PC), pp. 294-295

Alberta, Ministry of Justice, ”Report to the Minister of Justice and Attorney General, Public Fatality Inquiry”. [Okotoks], 2008a.

Alberta, Office of the Chief Electoral Officer Elections, 2008 General Election Report. [Edmonton], 2008b.

Alberta, Alberta Hansard, 1 December 2008c (Mr. Groeneveld, PC), p. 2133.

Alberta, Alberta Hansard, 28 April 2008d (Mr. Groeneveld, PC), p. 247

Alberta, Alberta Hansard, 13 May 2008e, p. 662.

Alberta, Alberta Hansard, 12 March 2009a (Mr. Groeneveld, PC), p. 372.

Alberta, Alberta Hansard, 1 June 2009b (Mr. Campbell, PC), pp. 1444

Alberta, Alberta Hansard, 1 June 2009c (Mr. Lukaszuk, PC), p. 1442

Alberta, Department of Agriculture and Rural Development, Alberta’s Rural Development Strategy: 2009 Update Report. [Edmonton], 2009d.

Alberta, Alberta Hansard, 30 November 2010a (Mr. Lukaszuk, PC), pp. 1699-1700.

Alberta, Alberta Hansard, 24 March 2010b 9Mr. Lukaszuk, PC), p. 638

Alberta, Department of Employment and Immigration, Alberta’s Minimum Wage to Remain the Same Throughout 2010. [Edmonton] 2010c.

Alberta, Department of Agriculture and Rural Development, Alberta Agriculture Statistics Yearbook 2009. [Edmonton] 2010d

Alberta, Farm Safety Council, Farm Injury/Fatality Statistics in Canada, [Edmonton], 2011 http://www.abfarmsafety.com/resources/statistics.htm (October 19, 2011).

Feds tell employers to raise wages?!?

On Wednesday, federal Employment Minister Jason Kenney told employers to raise wages and stop relying on temporary foreign workers, thereby reversing 15 years of federal labour-market policy. It is a bit like he had whatever the NDP equivalent of a come to Jesus moment is.

Kenney was speaking about the floundering Canada Jobs Grant (CJG) program that the Harper government is trying to push on the provinces (which the provinces are having none of). His point was that employers need to take steps to address the labour shortage, including investing in training. The unlikelihood of employers actually paying for training (which is a central feature of the CJG) is one of the issues the provinces have identified with the CJG.

Before we start mooning over a new era of enlightened Tory labour market policy, we should take a breath. While there has been a fair bit of chatter lately about how over blown the notion of a labour shortage is, there hasn’t be a lot of analysis about the feds role in it.

Labour shortages are usually relative, rather than absolute, shortages. Basically, when no more workers will make themselves available for prevailing wages and working conditions, the labour market tightens (“oh no, labour shortage!”. In the (Tory-revered) free market, employers can improve wages and working conditions and this causes more workers to come forward. Or employers taper off investment and labour demand declines. In either case, the labour market loosens.

But employers don’t like these options because they cut into profits. Employers would prefer to simply have more workers injected into the labour market. Enter temporary foreign workers (TFWs). TFWs are available because the federal government loosened the rules but told us that TFWs can only come when there are no Canadians available for the job.

And here is the rub.

When employers know they can get TFWs, what they do is offer wages and working conditions they know won’t attract Canadian workers (i.e., they manufacture a shortage). It sounds like a conspiracy but is actual just the natural operation of informed actors in the labour market (no tin-foil hat here!).

This dynamic creates the “evidence” of a labour shortage that is used to get permission to hire a TFW. In effect, the existence of the TFW program creates the so-called labour shortage. Employers desire TFWs because they can be exploited by employers in various ways.

So come back to Minister Kenney’s comments. After 15 years of increasing access to TFWs, suddenly he’s lambasting employers for not training Canadian workers. But why would employers pay $5000 to train a Canadian worker under the CJG when they can just go hire a TFW by paying a $275 application fee?

If Kenney is serious about training Canadians and employers paying their fair share, then he needs to radically reduce the number of TFWs that are available. Until he does that, his proclamations about employer training responsibilities are simply hollow words.

-- Bob Barnetson

Job insecurity and injury under-reporting

Work & Stress has just published a new article entitled "The relationship between job insecurity and accident under-reporting: A test in two countries".

The upshot of this examination of organizations in the United States and Italy is that job insecurity (one dimension of employment precarity) increases the likelihood of experiencing a workplace injury and decreases the likelihood that such an injury will be reported. The authors’ analysis strongly suggests that job insecurity, rather than memory lapses, is responsible for the under-reporting:

...as job insecurity increased, the discrepancy between what employees experienced and what they reported also increased, suggesting that employees may have a stake in maintaining a safe image at work even as their workplace experience of accidents and injuries increases as a function of job insecurity.

An interesting empirical and inter-jurisdictional addition to the literature on employment precarity and safety.

-- Bob Barnetson

Johnson picks a(nother) fight with the ATA

A couple of years back, the Government of Alberta launched the High School Flexibility Enhancement Pilot Project. The idea was to see if it was possible to de-link course credit and instructional time. Basically, could students earn credit without the 25-hours of mandatory face-to-face instruction per course credit currently required?

The summary report of the pilot quotes Minister of Education Jeff Johnson framing this change as:

…what we talked about in Inspiring Education and where we want to go in the province in terms of instilling critical competencies in kids as opposed to having them just regurgitate content and memorize content. And so, that’s going to require a change to our system; it’s going to require a change to how we teach; the curriculum we teach. It’s going to require having curriculum that’s simpler and less prescriptive and allows teachers and local communities to plan learning experiences; where we bring in experts from the community and experts from around the globe even because no longer in the future is it envisioned that the teachers are always going to be the same. And they necessarily won’t be the sage on the stage or the repository of all the knowledge and content. (p.2)

The list of positive and negative changes observed during the pilot are listed on page 15 of the document. They tell a mixed tale. General measures of student retention went up but exam scores went down. Quality of teaching and education measures generally went down. But the government has decided to go forward. Hmmm….

While the project is pitched as seeking flexibility, student-centredness and reducing infrastructure demand (i.e., new schools), it also has human resource implications. For example, teachers will be expected to teach differently and use outside “experts”.

Yesterday, Minister of Education Jeff Johnson suggested that one barrier to progress on this initiative is the "stringent" rules pushed for by the Alberta Teachers Association (ATA) to cap instructional hours and allow only ATA members to instruct students.

It is true that the ATA (acting as a union) negotiates instructional caps. But it does so with the government, either directly (as in this past round) or indirectly (via school boards, which are essentially proxies for the government). So implicitly blaming the ATA for a situation co-produced between the ATA and the government is misleading.

It is also true that, to teach a K-12 student, one needs to be certified by the ATA (acting as a professional regulatory body). But this arrangement flows from legislation, something the government controls. During the most recent round of bargaining, the government gave the ATA a “comfort letter” which basically says the government wouldn’t alter the regulatory function of the ATA. Again, this was a co-produced outcome, mostly reflecting choices the government has made over time that regulating who teaches children is a good thing.

For its part, the ATA notes it has been largely cut out of the design of this program. And, of course, the ATA’s job is to maintain professional and contractual standards, not help the government end-run them.

So why is Johnson blaming the ATA?

Well, Johnson did a poor job of handling ATA negotiations this spring and the premier had to bail him out. And Johnson has been taking fire for class sizes topping 40 students flowing from the government’s budget cuts this spring. Perhaps this is payback for the ATA’s efforts (on behalf of their members) for decent working conditions. And perhaps he is looking to scape-goat the ATA in order to hang onto his cabinet seat following this coming weekend’s Conservative leadership review.

-- Bob Barnetson

Summary of post-Fraser legislative efforts

Queen's Industrial Relations Centre has made available a useful (and blessedly brief!) article summarizing legislative changes to collective bargaining in the wake of the Supreme Court's Fraser decision.

-- Bob Barnetson

Older workers and unemployment

One of the things that came out of the weekend workers' compensation conference I attended was a discussion of how difficult re-employment is for injured workers. This came up in the context of deeming, a practice by Workers' Compensation Boards whereby wage-loss compensation to injured workers is sometimes reduced based upon a deemed amount the worker is expected to earn (whether or not the worker has a job).

By coincidence, this 20-minute CBC radio documentary (called Freedom 95) arrived in my inbox. It discusses the difficulties faced by older workers who find themselves unemployed. While older workers don't have exactly the same challenges as injured workers do, they do face similar systemic barriers. The result is that they can never retire.

The documentary discussed the federal Targeted Initiatives for Older Workers (TIOW) program. This provincially delivered program ends in March (in Alberta, at least). It is unclear whether it will be renewed. If it isn't renewed, one of the knock-on effects is that those who are served may well abandon efforts to connect to the labour market and, instead, access various social benefits.

Interestingly, the TIOW is designed to serve workers up to age 64, although the need for post-65 labour market attachment assistance seems clear as many Canadians don't have adequate resources to retire.

-- Bob Barnetson