Wednesday, March 15, 2017

Submission on Bill 6 Recommendations

The Government of Alberta is seeking feedback on recommendations made by industry working groups about the application of the Employment Standards Code and the Labour Relations Code to farms and ranches in the wake of Bill 6. You can view the recommendations and provide feedback here. Here are the thoughts I sent in:

Thank you for the opportunity to provide feedback on the Bill 6 Employment Standards and Labour Relations Working Groups’ reports. I have broken my response into six sections.

In reading the recommendations, it is worth noting that only 29% of Alberta farms employed waged labour in 2011. Most of this employment occurs on farms with annual revenue of $250,000 or more. These farms can afford to provide fair and safe workplaces.

The working group makes a number of recommendations that effectively roll back protections for various workers.
  • In some cases, the working group seeks to have family members who are also waged employees excluded from Employment Standards under the pretext that many families do not comply with the existing standard. 
  • In other cases, the working group seeks to have portions of the agricultural industry that are currently covered by some Employment Standards provisions (i.e., nurseries, sod farms, greenhouses, and mushroom farms) deemed to be primary production operations and, therefore, excluded from these provisions.
The main purpose of Bill 6 was to extend the rights of farmworkers. These recommendations have the effect of rolling back existing rights and, therefore, are fundamentally incompatible with the legislative intent of Bill 6.

The rationale for family exemptions is essentially “well, since we already ignore your laws, you may as well roll them back.” This is akin to suggesting that speeding could be resolved by raising the speed limit (instead of enforcing the existing limit).

The rationale for excluding operations already subject to some employment standards is stated as: 
The nature of work and type of product from these establishments is generally similar to those in the agriculture sector as a whole. Consequently, they should be classified as ‘primary production’ and be subject to the same rules and regulations as the rest of the agriculture industry. (p.13)
The assertion that these operations are the “generally similar” to those in the agricultural sector is not perfectly true. These operations typically do not have the weather- or reproductive-based time pressures of farming and ranching respectively. Further, they tend to be more labour intensive operations, often employing significant numbers of paid staff. Consequently, these operations look less like most agricultural operations and more like small manufacturing operations. Further, ignoring the different nature of these operations sits uneasily with the working group’s own objective of having regulations that are “product-specific” and “recognize the diversity of the industry” (p.3).

Given this, there is no rationale for expanding the exclusions to Employment Standards and these recommendations ought to be ignored.

The Working Group recommends excluding farm workers from the provincial rules around hours of work, days of rest, and breaks. The key argument for these standards is safety: long hours contribute to fatigue, which, in turn, increases the risk of injury. For example, being awake 17 hours is the same as having a blood-alcohol level of 0.05 (i.e., being legally impaired in Alberta). Given that agriculture is already one of Canada’s most dangerous industries, failing to regulate fatigue poses a threat to the health and life of workers.

The working group has also recommended exempting agricultural operations from overtime provisions. Alberta normally requires overtime pay when employers demand more than 8 hours of work in a day, or 44 hours in a week. The purpose of this standard is to discourage employers from imposing on workers long work weeks (via a wage premium).

Eliminating the rules around overtime—especially in conjunction with eliminating maximum hours of work—will reduce wage costs for agricultural owners. The cost of this change will be borne by farm workers (whom Bill 6 is designed to protect) because they will receive lower wages and be placed at higher risk of fatigue-related injuries.

The argument that “An overtime rate would only lower the base pay rate which would not increase total earnings of employees and furthermore cause complications in calculating pay (p. 9)” seems specious since (1) most farm workers make only slightly more than the minimum wage (thus there is not far for the base rate to fall) and, (2) farms are subject to labour market dynamics (wherein reducing the base rate of pay may impede recruitment).

The working group is also recommending eliminating extra pay for farm workers who work statutory holidays. There is no real argument for this recommendation, except minimizing employer wage costs.

Overall, these recommendations are designed to externalize labour costs (in the form of low wages and unsafe working conditions) from producers onto workers. This is inconsistent with the intent of Bill 6 and these recommendations should be disregarded.

The application of Alberta’s child labour laws (as presently written) would preclude children (under 12) and adolescents (aged 12–14) from being hired to work on farms. Bill 6 already exempts family members from all employment rules, so these standards apply only to children and adolescents whom farmers seek to hire as waged workers.

The working group proposes allowing adolescents to work on farms subject to two caveats:
  1. Workers aged 12 and 13 can only work 20 hours per week. This is different from the normal rules for adolescents, where work is limited to two hours on a school day and eight hours on a non-school day. The impact of this proposal would be to lengthen the allowable work day and work week during the school year, but shorten it during the summer (which seems contrary to the educational interests of adolescents).
  2. Workers under 16 can only be employed if the work has no negative impact on schooling, parental consent is be obtained, and the work is not detrimental to the health, education, or welfare of youth. These requirements basically already exist in the Employment Standards Code and regulations.
Given the high rate of injury associated with agriculture and the particularly vulnerable nature of adolescents at work, allowing adolescent employment in agriculture is not good public policy. It will only be a matter of time before a teenager is maimed or killed on the job. How soon will depend upon which occupational health and safety rules apply to farms, and whether farms bother complying (as we saw above, farmers already admit to not complying with certain Employment Standards).

The working group is also seeking to reduce the minimum wage for workers under 16 years of age to 75% of the normal minimum wage. The working group’s rationale is that a lower minimum wage will encourage agricultural employers to provide work experience for young people. This rationale obscures farmers' financial interest in minimizing their labour bill. Further, will young workers really flock to farm jobs if such jobs pay less than jobs in any other industry? Given that Alberta only recently ended lower wages for workers who serve alcohol, I see no rationale for lower wages for young workers.

The Labour Relations Working Group recommends adding “imminent and irreversible damage to crops and/or livestock welfare in primary agriculture” (p.8) to the circumstances when the government can impose a Public Emergency Tribunal (thereby ending a work stoppage) under the Labour Relations Code.

While the working group’s concern for animal welfare is commendable, there is no reason to believe that a work stoppage would imperil animal welfare. Employers have 72-hours of notice of any work stoppage (a savvy employer would have even longer notice) and be able to take appropriate action to ensure animal welfare. In this recommendation, the working group is catastrophizing as a way to justifying limits on workers’ constitutional right to strike.

The argument the working group makes for declaring a PET due to risk of crop loss is equally without merit. Many employers face significant disruption in production (including unremediable losses) due to work stoppages (e.g., companies the ship spoilable products or companies that host events). The threat of such disruption is the reason why work stoppages are effective tools.

The real issue here is that farm employers don’t want to be periodically subject to effective collective bargaining pressure by their workers. This desire by employers to interfere with constitutionally protected worker rights is evident in the “strategic options” advanced, such as excluding agriculture from the ambit of the Labour Relations Code and entirely banning strikes and lockouts in agricultural labour relations.

The working group identifies the Ontario Agricultural Employees Protection Act as a possible framework for unionization and collective bargaining in agriculture. It is important to recall that this legislation was enacted in response to the Supreme Court’s decision in Dunmore and was designed to provide the thinnest set of labour rights that were (then) constitutional. Recent jurisprudence has substantially expanded the scope of protected activity under Section 2(d) and significant portions of the AEPA are unlikely to be found constitutional. This model should be rejected in favour of the same model of labour relations available to every other worker and employer in Alberta.

The working group advances the strategic option of a minimum agricultural bargaining unit size of 5 (versus the norm of 2). This limit is unnecessary because of structural pressures. Recent research I’ve conducted into rural organizing in Alberta using the provincial government’s collective bargaining data-set suggests that bargaining units smaller than 20 workers are uncommon in rural, private-sector operations. This is because (absent very specific circumstances) such units are economically unviable for unions to organize and operate. This analysis suggests that unionization activity is likely to be limited to large agriculture operations that have a significant number of employees (e.g., feedlots, green houses).

Thanks you for the opportunity to make comment upon the working groups’ recommendations.

Bob Barnetson, Professor
Labour Relations
Athabasca University

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