Tuesday, December 25, 2018

On the absence of concerted-activity protections in Alberta

There was an interesting post the other day about how workers in a US restaurant took direct and collective action to protect their health and safety when confronted with (1) unsafe temperatures and (2) a potentially lethal carbon mono-oxide leak.

In both cases, the workers walked off the job until the employer addressed the problems. This forced the employer to rectify the problems, something the employer had initially declined to do.

This concerted activity is protected in the US by Section 7 of the National Labour Relations Act. The highly mobilized workforce in this diner also created a degree of protection for such collective acts of resistance. There are no similarly broad concerted activity protections in Alberta’s labour laws.

Instead, Alberta workers could refuse unsafe work (a right under the OHS Act and for which retaliation is officially precluded). If the employer failed to remedy the problem, it would eventually be escalated to an OHS officer. The officer might or might not agree with the workers’ concerns and, if so, might issue a stop-work order.

Whether calling OHS would be effective depends on a lot of things, including how close the nearest OHS inspector was, whether the condition existed by the time the officer got there (temperature can change even though the root cause remains), and the degree of (mostly illegal) pressure (overt or subtle) that the employer exerted on the workers to return to work and abandon their refusal.

While Alberta’s labour laws generally provide superior statutory protections than US laws, it is less clear if they offer better actual protection. That is to say, the paradox of poor employment laws is that they may compel workers to adopt more effective tactics to protect themselves than do better laws.

In this way, it is sometimes helpful to think of employment laws as both an effort to provide protections to workers and an effort to direct conflict into manageable dispute resolution processes. In this case, Alberta’s OHS rights provide (in theory) protection against workplace hazards (if you follow the process), but (unlike the US NLRA Section 7 rights) don’t protect other (probably more effective) forms of concerted activity.

Alberta’s Labour Relations Code does provide protections for associational activity, but only in the narrow circumstances of forming or participating in a trade union. A group of non-unionized workers who asked for, say, a better shift schedule and were punished by their boss for doing so, would have no meaningful recourse in Alberta. If they walked off the job in protest of the punishment, they’d just get sacked.

This absence of broader concerted-activity protections in Alberta acts as a barrier to direct and collective action by workers outside of the structure of formal trade unionism. This may, in fact, be the purpose of the absence of such protections—it protects the turf of organized labour and limits the threat posed by workers to employer power.

Whether limiting statutory protections for associational activity to participation in formal trade unionism is consistent with the Charter will be an interesting question going forward.

-- Bob Barnetson

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