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.

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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.

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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).