Friday, November 1, 2013

Presentation: : Farm workers, firefighters and workers’ compensation exceptionalism

We’re not worthy: Farm workers, firefighters and workers’ compensation exceptionalism in Alberta, 2000 to 2012. No half measures: Workers’ compensation 100 years after Sir William Meredith
1 November 2013, Don Mills
Bob Barnetson, Athabasca University

Good afternoon, I’m Bob. I teach labour relations at Athabasca University in Alberta and What I’d like to talk to you about today is the very different levels of access that Alberta farm workers and firefighters have to workers’ compensation coverage.

Alberta farm workers face what academics call employment precarity—low wages, limited job security and poor access to statutory benefits. One aspect of this precarity is that the vast majority of farm workers in Alberta have no access to any kind of workers’ compensation if they’re injured—just like about 30% of Ontario workers.

Yet, not all workers are in this boat. Over the past 10 years, Alberta firefighters have acquired an exceptional level of access to workers’ compensation benefits. Specifically firefighters diagnosed with any of 14 kinds of cancer are automatically compensated (this is called having presumptive status). By contrast, the seven-ish percent of farm workers who have workers’ compensation would need to identify the exposure that caused their cancer in order to get compensation.

These different experiences of exceptionalism emerge despite the similar working conditions faced by firefighters and farm workers. Both have a heightened risk of occupational cancer. And neither can refuse workplace exposures to carcinogenic substances. How Alberta politicians justify such inconsistent and unjust treatment tells us useful things about how we might go about improving precarious workers’ access to workers’ compensation.

Workers’ Compensation and Occupational Disease
So let’s start with some basics. Every province has a workers’ compensation system that covers most workers. In Alberta, firefighters have mandatory coverage while farm workers don’t—their employers (farmers and feedlot operators) can (but generally don’t) purchase voluntary coverage. This farm-worker exclusion reflects the historical political power of the farm lobby, which has finagled farm-worker exclusions from most of the Employment Standards Code as well as all of the Labour Relations Code and the Occupational Health and Safety Code. Basically, farm workers have none of the statutory rights and benefits that the rest of us take for granted.

Occupational diseases are pretty common injuries but can be tricky to get compensation for because of their long latency period, murky causality, and employer resistance. This is particularly the case with occupational cancer. In Alberta, there is broad agreement that 8-10% of cancers have an occupational link but only 0.22% of cancer diagnoses and 0.68% of cancer deaths in 2005 (which were the most recent years I could find stats for) resulted in success claims.

A part of that is under-reporting—it is hard to recognize an occupational connection to your cancer when you get diagnosed 20 years after an occupational exposure you may not have known about. The vast majority of Alberta’s accepted cancer claims are by firefighters, coal miners and workers exposed to asbestos—workers for whom the government has mandated presumptive status.

Justifying Exceptionalism
So how do Alberta conservative politicians—we call them MLAs, you call them MPPs—justify this presumptive coverage for firefighters on the one hand and no coverage for farm workers on the other?

Well, firefighters got presumptive status in 2003 (and it was expanded in 2010 and 2011). In the debates about enacting this legislation, government MLAs relied upon six reasons to justify granting firefighters presumptive status.

First, MLAs argued that firefighters get cancer more often than the average worker because of occupational exposures to carcinogens. This is true. It is also true of farm workers.

MLAs also asserted that firefighters are the only occupational group unable to refuse unsafe work because occupational exposures to carcinogens is a normal part of their jobs. Now that is not quite true. Farm workers are also unable to refuse such work because they are excluded from the ambit of the Occupational Health and Safety Code. If farm workers refuse unsafe work, they will likely get sacked.

Third, MLAs said firefighters need presumptive coverage because they can’t demonstrate a clear link between a specific exposure(s) and a cancer because of poor (or no) data collection as well as long latency periods and murky causality. This is also true of farm workers because their exclusion from the Health and Safety Code means they have no right to know about hazards in their workplace, including chemical exposures.

I know people sometimes scoff at the notion that farm workers would accept unsafe work, but they do because they fear being fired. The result is a complete wild-west mentality in Alberta agriculture. For example, one female farm worker pointed out that throwing armloads of malathion (an insecticide) with bare hands into a grain bin without reading the instructions was likely unsafe. As it turns out, high levels of exposure to malathion can resulting in skin and eye irritation, cramps, nausea, diarrhea, excessive sweating, seizures and even death.

The worker’s employer told her she "thought too much". Now she was eventually provided with some PPE (personal protective equipment)—a long stick with a tin can on the end. I wish I was making that up, but that’s how things roll on some farms.

Coming back to the MLA narratives, the fourth reason for granting firefighters presumptive status was that the cost of granting presumptive status was small. This would not be true of farm workers—mandatory workers’ compensation coverage on farms would increase payroll costs of about 3%, costs that farmers can currently externalize onto workers and the public health-care system.

Fifth, MLAs said Alberta was following the lead of other jurisdictions, which were (at the time) beginning to grant presumptive status to firefighters. Of course, farm workers in other provinces are also (slowly) gaining possession of employment rights, including access to workers’ compensation.

Finally, MLAs said firefighters are heroes and society owes firefighters (and their families) presumptive status. There is no analog to this among farm workers. Indeed, farm workers are entirely absent from the discourse around mandatory workers’ compensation coverage for farms. Instead, MLAs discuss employer interests, something that never came up when chatting presumptive status for firefighters—perhaps because firefighter employers were supportive of presumptive status.

When forced to discuss the farm-worker exclusion, MLAs argued three things. First they said that educating farmers about the benefits of taking out voluntary workers’ compensation for their workers was better than forcing farmers to do so. Since 93% of farm workers have no such coverage, that is obvious untrue.

MLAs argued that farms can’t be regulated like so-called regular worksites, primarily because farms are mixed-use worksites (i.e., they are both homes and businesses). This is untrue in several ways. Lots of large farms and feedlots are simply worksites. Lots of other provinces somehow manage to disentangle regulatory issues on mixed-use sites. And, in fact, Alberta regulates some mixed-used farms, including greenhouses, mushroom farms, nurseries and sod farms. So clearly mixed-use worksites simply don’t pose any kind of insurmountable regulatory barrier.

Finally, some MLAs said farmers don’t want mandatory workers’ compensation coverage forced upon them. This is probably true, but we don’t make public policy based solely on what employers want. The real issue is that government MLAs are politically beholden to rural voters for re-election due to MLAs’ gerrymandering of electoral boundaries. Simply, MLAs don’t want to piss off the farmers and are happy to throw farm workers under the bus.

Alberta’s experience with firefighter and farm worker exceptionalism contains three lessons that I think have application to working with other groups who are excluded from workers’ compensation, particularly workers who are precariously employed.

The first lesson is that exceptionalism in public policy requires justification. Now, obviously, that justification doesn’t have to be particularly good. Or even true. But politicians clearly recognize the need for at least the façade of a rationale to maintain their legitimacy when making public policy. This, in turn, suggests that politicians may be sensitive (or even vulnerable) to having their purported rationale up-ended by careful and timely analysis.

In this case, farm-worker advocates might well have used the government’s willingness to extend exceptional access to firefighters as an opportunity to raise the political costs of maintaining the clearly inequitable farm-worker exclusion. They didn’t, but the opportunity was there; the key point being that gains by relatively privileged workers can open space for precarious workers to make demands based on the principle of equality.

The second lesson is that employer support or opposition can play a critical role in extending access to workers’ compensation. Firefighter employers were supportive which reduced the political cost for MLAs when they extended presumptive status. By contrast, farmers have been (until recently) steadfast in their opposition to mandatory workers’ compensation in Alberta.

That said, employer opposition is not immutable: the key is converting (or at least neutralizing) this opposition. In Alberta, farmer opposition to mandatory workers’ compensation coverage has been reduced (but not eliminated) by highlighting the liability protection workers’ compensation provides: this was suddenly important to farmers after a farm fatality lawsuit bankrupted a feedlot. Further, employer opposition is not determinative: when politicians set public policy, they must be responsive to threats to their legitimacy, such as a good argument or a sympathetic group of workers.

The third lesson is that the political salience of the workers matters. Firefighters are predominantly unionized white men who have access to significant personal and collective resources. And they’re held in high esteem by the public—they are often seen as heroes. By contrast, farm workers are typically non-unionized. They are often female and belong to ethnic minorities. A significant portion may also be international migrants, with little political power or interest in engaging in Canadian politics. Farm workers are not only not heroes, but they are basically invisible workers.

But the limited political salience of farm workers is also not immutable. Food and food security are topical issues, and farm workers clearly play an important role in them. Further the working conditions on farms are often exploitative and simply odious: lots of injuries, many gruesome, poor sanitation, awful working and living conditions, low wages and poor treatment, harassment, sexual assault. These characteristics of farm work can be harnessed to improve the public perception of farm workers as necessary and hard working. And as needing and deserving of the same basic employment rights as every other worker.

This case also highlights a number of challenges with organizing precarious workers. Farm workers are frequently transitory workers, workers who rightly fear retribution and who have little immediate incentive to join a “union”. Because of this, organized labour in Alberta appears unwilling to do much for farm workers beyond issue press releases.

In the place of organized labour, a grassroots organization has developed: the Farmworkers Union of Alberta (known locally as FU Alberta…). This group has relatively few resources—there are two staffers, who are both basically volunteers. One of the resources FU Alberta does have is an absence of internal constraints on its behaviour. Consequently, it works with both government and opposition politicians (sometime simultaneously) as well as with employer groups.

Over the past few years, FU Alberta convinced members of Alberta’s largest farm lobby group to pass motions compelling their organization to explore mandatory workers’ compensation coverage. So far, this has created significant discord within the producers’ group, which has reduced the group’s ability to publically resist calls for mandatory workers’ compensation—although their executive continues to do so behind the scenes.

FU Alberta has also worked to apply moral pressure on policy makers around the issue of injury compensation, highlighting the real world injustices that flow from farm workers’ exclusion. Partly as a result of this pressure, the premier publically committed to extending basic employment rights to farm workers during a meeting with the editorial board of a major daily newspaper—an unfulfilled promise she is periodically reminded of.

FU Alberta has also been reasonably careful not to back the government into a moral corner. Instead of condemning government (in)action, they have been framing farm workers as deserving of the same injury compensation everyone else receives. This allows MLAs to change their position without having to directly recant their earlier support of farmers—they can simply adopt the positive “hard-working and deserving” characterization. To date, MLAs have not yet come around to this, but providing MLAs with a way to save face seems like a good strategy for the future.

Obviously Alberta’s particular and peculiar politics deeply affects this specific case. Consequently, I’m going yo leave it to you to decide whether and how these lesson can be applied to precarious workers in Ontario. But thanks very kindly for listening to my story this afternoon.

-- Bob Barnetson

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