Labour & Pop Culture: I wish that they'd sack me.

It has been a pretty tough year for Alberta public-sector workers. After two years of wage-freezes under the New Democrats, the newly elected United Conservative Party legislative intervened in collective agreements to stall wage arbitrations and then demanded rollbacks of 2 to 5%. There have also been hiring freezes and more roll backs and layoffs are just around the corner.

This has had a deleterious effect on morale across the public sector. While many people likely shrug, declining morale tends to pre-sage declining effort, growing use of sick time (due to stress), and a slow trickle of departures. This intensifies the stress on those who remain and results in a negative feedback loop.

Chumbawamba’s  "I Wish That They'd Sack Me" pretty much sums up much of the conversation at the holiday parties I attended this year.

Six in the morning don't want to wake
Sun laying low and the world sleeping late
Hate like the river runs heavy and deep
Oh I wish that they'd sack me and leave me to sleep

Five days from seven the week's hardly mine
The alarm clock's gone over to enemy lines
Waste my time working for cowards and creeps
Oh I wish that they'd sack me and leave me to sleep

Rain strikes the window heralds the day
Rain won't you wash these eight hours away?
Rain feeds the river runs heavy and deep
Oh I wish that they'd sack me and leave me to sleep

Birds at my window sing in the dawn
By the time that I'm home all this day will be gone
Spend my life sowing what others will reap
Oh I wish that they'd sack me and leave me to sleep

Rain strikes the window heralds the day
Rain won't you wash these eight hours away?
Rain feeds the river runs heavy and deep
Oh I wish that they'd sack me and leave me to sleep

-- Bob Barnetson

Research: Return to work among injured mobile workers

The American Journal of Industrial Medicine recently published an interesting article about the intersection between mobile work and return to work following as workplace injury.

The study, “Total disability days in interprovincial and home‐province workers injured in Alberta, Canada,” compared the speed of return to work for 240 pairs of workers (each comprising one worker injured in Alberta and who required time off from work from Alberta and one from Atlantic Canada). This comparison was supplemented by 60 interviews with injured workers.

The overall findings are that mobile workers were less likely to return to work (79%) than resident workers (90%) and required almost three times as long as resident workers to return to work (63 days to 22 days). This likely reflects the importance of family support during a recovery from an injury which took mobile workers away from the jurisdiction in which they were injured.

The study includes a very nicely nuanced conclusion:

The conclusion from this study is not that out‐of‐province workers should necessarily be provided with greater services in Alberta, nor that they should be required to seek health care only in the province of injury. Rather, we would argue that the higher costs for wage replacement associated with extended time off work may be inherent to the practice of employing out‐of‐province workers for jobs for which there is a shortage of local labor. (p.9)

This reflects that labour mobility entails costs, both to employers and workers. Some of these employer costs can be attenuated through policy changes. Others either should not be attenuated because of the impact such changes would have on the more vulnerable party (the worker).

-- Bob Barnetson

Labour & Pop Culture: The Crown and Supergirl

As I recover from the end of semester marking rush, I’ve noticed a few instances of labour issues appearing on TV shows. 

In an otherwise dull season of The Crown, there are two items of note:

Ep 3: Aberfan: This episode centres on the destruction of the mining village of Aberfan. Piles of coal slag were stacked too high and shifted, burying portions of the town, including the school. The Queen feels bad.

Ep. 9: Imbroglio: A subplot in this episode is the 1972 miner’s strike in Britain which causes rolling blackouts. After two months on the line, the workers gained a 27% pay increase. The Queen feels bad.

A funnier thing I noticed was in season 3 of Supergirl. Episode 4 sees Supergirl rescue a man from a burning factory. As Supergirl walks away, you can just see at the top of the frame the “days without an injury” sign flip from 190 to 0.

-- Bob Barnetson

Barriers to implementing OERs

Barriers to implementing OERs
Council of Alberta University Students
20 November 2019, Edmonton

I recently had the opportunity to discuss Open Educational Resources (OERs) with student leaders from across Alberta. Their interest in OERs focuses on the cost savings. I was asked to discuss barriers to OER implementation.
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Two quick notes to start.

1. I was asked by the Confederation of Alberta Faculty Associations to talk about the barriers to OER adoption from a faculty perspective because I’ve written and adopted three OER textbooks in my courses. That said, just to be clear—I’m here as a professor and my views are not necessarily CAFA’s view.
2. I’m also going to use the terms OER and textbook interchangeably. I acknowledge there are other forms of OERs than just textbook analogs. But, for the most part, OERs essentially serve in place of textbooks, so I’m going to use the terms interchangeably.

So why is OER adoption so slow? I see basically three main issues.

First, in my experience, there are no OERs available for most courses (that is changing but slowly). And the OERs that are available tend to be a mixed bag in terms of their quality and suitability. For example, I teach an intro HR course. There are OERs but they often tend to be niche-focused (e.g., introduction to HR in the tourism sector). And many are pretty mickey-mouse, which may create accreditation problems. So I don’t use them, even though I would like to use an OER in that course.

The limited number of OERs reflects that there are few to no resources available to write and produce OERs. While OERs can be cheaper to produce than commercial textbooks, they still do cost money. Right now, post-secondary institutions almost entirely rely upon commercial texts because these texts externalize the cost of production to students. If we’re going to want to increase the breadth or number of OERs, then we need to address the economics of it. And, bluntly, someone needs to fund it.

And that doesn’t just mean one-time funding. Commecial texts are attractive to profs and institutions not just because they are “free”, but also because they are periodically updated at no cost to the academics or the institutions. If there are few to no resources to write new OERs, then there are even fewer resources to update OERs periodically. This is more urgent in some disciplines than others, but producing a one-off book with no prospect of updates makes profs reluctant to use the book. Again, this comes back to funding.

This is one of the OERs I’ve written. It is a health and safety textbook. It costs $30 in paper and is a free as a pdf. This is the main commercial health and safety textbook. It costs $150—five times the costs. Now a certain amount of that difference is profit for the publisher and royalties for the author. And a certain amount of the difference has to do with production costs—my OER is very bare bones: black and white, text heavy, no pictures or other pretty filler material.

But, at the end of the day, both books have certain sunk costs associated with writing, editing, peer-review, and production. My OER cost about $40,000 that we got as a government grant. That was $30 grand for 52 days of course release to write plus $10 grand for production costs. Both of those amounts under-represent the true cost of production—my institution absorbed those extra costs. I would guess they were in the neighbourhood of $25k. So this one book cost about $65k to create.

A second OER that I wrote I did without any funding. I found the time by displacing my own research (which entails a certain career cost to me) and I used my own money to cover some of the production costs (the remainder were covered by institution). I’m currenting mooting writing an OER HR textbook, but it simply requires money and time that I don’t at present have.

A second issue is that most OERs are digital products—which is why they can be provided for free. My experience is that most profs and a large proportion of students don’t like electronic textbooks. I’ve actually moved away from commercial etexts in two courses because I got tired of the complaining from students.

These complaints generally swirl around etexts being hard to read and hard to annotate. E-texts (even ones stored in the cloud) can also disappear or become inaccessible at the end of or in the middle of a course. And there is some evidence that students retain less of what they read using etexts, when compared to print books. These are not trivial drawbacks associated with digital OERs.

One option is to provide print on demand books or a choice between a print and an e-text. These are good solutions but they entail additional complexity on the production and distribution sides. Institutional bookstores may be reluctant to engage multimodal offerings, especially since OERs are about minimizing cost (and thus drive down bookstore revenues). Using alternative distribution channels dramatically increases the hassle for profs. We use campus bookstores not because they are awesome or fun to deal with, but because they are easy: send in an ISBN and textbooks appear.

A third issue is that OERs are less attractive to instructors. Most commercial books have websites, canned assignments, lecture notes, power points, and test banks. They may even have pro-programmed learning management systems that handle all of the hassle of assignment marking and grade tracking and just export a list of final grades at the end. So commercial texts (like this Kelloway one) is basically plug and play for an instructor.

By contrast, an OER is likely to have none of this material because even basic stuff (like multiple-choice tests) is very laborious to create and, of course, there is no money for OERs. So profs who think about OERs are also thinking about the additional work they are creating for themselves if the adopt an OER.

So, to summarize, the basic barrier is funding related: OERs are not free to create and maintain but their nature (as free to students) means there is no obvious revenue stream to fund their creation and maintenance. A secondary issue is that professors and institutions may have a vested interested in using commercial texts that are respectively related to workload and revenue. And, of course, students don’t necessarily like digital texts.

So what can be done?

Basically there are two challenges: creating adequate OERs and getting profs to adopt them.

Creating is probably the easier issue to deal with. There won’t be an appreciable increase in OERs without additional funding. So where could money come from? Well, you could get new cash from the government, you could get institutions to divert cash from some other project, or you could come up with it from your members. The latter is probably the most likely to happen

Getting profs to adopt OERs is probably harder. One pathway would be to find the 20 highest enrollment courses at your institution, look for OERs for them and, if your find them, go meet with the profs and show them. Explain the cost implications for students and ask them to use them. If they say no, ask why not (as that might inform what you do next).

An easier but likely less effective option is to ask the government to include a performance measure in its new funding model that measures of accessibility based upon the percentage of courses that contain OERs. This might incent some institutional behavioural change. It also gives you a pretext for later on asking the government to specifically fund the creation of OERs.

-- Bob Barnetson

Bill 26 strips farm workers' basic employment rights

This post originally appeared on the Parkland Institute blog.

Farm workers were granted basic employment rights beginning in late 2015 when the former New Democratic government enacted the Enhanced Protections for Farm and Ranch Workers Act (colloquially referred to as Bill 6). Farmers and conservative politicians were extremely hostile to Bill 6, asserting that basic employment rights would imperil the viability of agricultural operations. Despite the absence of evidence that Bill 6 harmed any farms, the United Conservative Party (UCP) promised to eliminate basic farm worker rights if elected.

On November 20, the Kenney government fulfilled this promise when it introduced Bill 26 (the Farm Freedom and Safety Act). This bill strips Alberta agricultural workers of many basic employment rights. Specifically, it precludes farm workers from unionizing, reduces the occupational health and safety protections for workers, makes workers’ compensation coverage optional, and expands exceptions to employment standards. These changes will be particularly harmful to women and children employed on Alberta’s farms and ranches.

Labour Relations

Bill 26 amends the Labour Relations Code to exclude farm and ranch employees from the definition of employee. This exclusion effectively precludes these workers from forming or joining a trade union. This exclusion is contrary to Section 2(d) of the Charter of Rights and Freedoms, which protects workers’ freedom to engage in associational activity.

In 2001, the Supreme Court of Canada (SCC) decided (in Dunmore v Ontario (Attorney General)) that completely excluding agricultural workers from the ambit of Ontario’s Labour Relations Act (LRA) was unconstitutional. Specifically, the vulnerable nature of farm workers means that, farm workers were “substantially incapable of exercising their fundamental freedom to organize without the LRA’s protective regime.”

If challenged, those portions of Bill 26 that exclude agricultural workers from forming or joining a union will almost certainly be struck down as unconstitutional. A Charter challenge is, however, unlikely because a challenge normally requires a factual case to get started. Specifically, it requires a live case of farm workers who have attempted to exercise their associational rights (e.g., collectively bargaining) and failed.

As far as I know, there have been no efforts to unionize or collectively bargain in Alberta’s agricultural industry. This reflects the vulnerability of farm workers as well as the small size and transient nature of most farm workforces. The exclusion of farm workers from the ambit of the Labour Relations Code by Bill 26 makes it unlikely any will try in the future because they would have no protection against termination for organizing and no capacity to strike to enforce their collective bargaining demands. This, in turn, means no challenge is likely to arise.

Injury Prevention

Although Bill 26 is silent on the matter, the government has indicated that farms will no longer be subject to the detailed safety rules set out in the Occupational Health and Safety Code. The rudimentary safety rights set out in Occupational Health and Safety Act would continue to apply.

Injury Compensation

At present, farms and ranches with paid, non-family employees must enroll their workers in the workers’ compensation system—like virtually every other employer in every industry across Canada. Workers’ compensation coverage provides wage-loss, rehabilitation, and fatality benefits to workers. Workers’ compensation also precludes workers from suing their employers if the worker is injured.

Prior to 2015, such coverage was optional and relatively few farms purchased it. Some farms purchased private injury insurance. A 2015 study commissioned by the former Progressive Conservative government found that relying on farmers to purchase private insurance left a significant number of farm workers uninsured or underinsured and the private premiums were more expensive than were workers’ compensation premiums. Private insurance also left farmers open to civil suits when injuries or fatalities occurred.

Bill 26 makes two changes to workers’ compensation. First, it allows farmers to choose to carry either workers’ compensation coverage or private insurance coverage. The scope and nature of the private insurance coverage will be determined by regulation. Consequently, the private insurance may not necessarily provide injury-compensation benefits equivalent to those provided by workers’ compensation. Workers may be required by their employer to pay a portion of private insurance premiums (often called co-pay).

Second, Bill 26 exempts any farm with 5 or fewer employees from the requirement to carry any insurance. Further, family members and workers who have been employed for fewer than 6 consecutive months do not count towards the total of 5 employees. This criterion (see Scope of Exclusions below) means that vast majority of farm workers are likely to be under- or uninsured against injury. Employers may still provide insurance or they may leave it to workers to secure their own insurance coverage.

A less obvious concern is that allowing farmers to purchase private insurance in lieu of enrolling in workers’ compensation may open the door to a greater role for private-sector insurance providers in other industries. Some US jurisdictions allow for the private provision of workers’ compensation insurance. This typically results in poor outcomes for injured workers because private providers seek to minimize claims in order to maximize profitability.

Employment Standards

In 2015, farms and ranches employing paid, non-family workers were made subject to most of the provisions in the Employment Standards Code. The Employment Standards Code sets minimum standards around wages, vacations and statutory holidays, various job-protected leaves, and the termination of employment.

Bill 26 makes two main changes. First, farms and ranches that employ 5 or fewer workers are entirely excluded from the ambit of the Code. This means that none of the basic employment rights that every other worker has apply to workers on these farms. Again, family members and workers employed for fewer than 6 consecutive months do not count towards meeting the 5-person threshold. This change has the effect of excluding most farms from the ambit of the Code (see Scope of Exclusions below) and thereby strips most employment protections from most farm workers.

The effects of this exclusion will be significant for farm and ranch workers on farms with 5 or fewer employees. For example, there will be no minimum wage, vacation time, statutory holidays, or required termination notice for these workers. Excluded workers under 18 will continue to have no limits on what sort of work they can do, under what conditions, and for how long because child labour laws don't apply. Excluded workers will have no access to job-protected parental, compassionate care, family responsibility, or domestic violence leaves, all of which are disproportionately accessed by female workers.

Employers can, of course, voluntarily comply with employment standards. But the reason governments enshrine these rights in legislation is that employers typically do not voluntarily comply with such standards. One consequence of eliminating these rights is that paid farm work will become even less attractive than it already is, thereby likely heightening the existing farm labour shortage.

Further, Bill 26 extends the definitions of agricultural operations to include mushroom farms, sod farms, nurseries and green houses. This change increases the number of workers whose rights have been taken away. The small number of farm workers on farms with 6 or more workers (and thus who continue to fall within the ambit of the Code) continue to have no protections around hours of work and rest periods, or access to overtime provisions.

Scope of Exclusions

The government has not released any public estimates of how many workers are employed in operations of five and fewer employees and, thus, will be excluded from employment standards and mandatory injury insurance. The best source of data on agricultural employment is Statistics Canada’s Agricultural Census. We can use this data to estimate the impact of Bill 26.

The 2016 Agricultural Census suggests there were 33,498 paid farm workers employed on 9,565 farms, yielding an average of 3.5 workers per farm. These workers are evenly split between full-year and part-year (i.e., seasonal) positions. Of the 9,565 farms that employed paid workers, 3,472 farms (36.3%) employed solely part-year workers. The other farms employed some combination of full-year and part-year workers.

The Census data does not perfectly map onto the categories proposed in Bill 26. For example, the Census totals include paid family members (other than owner/operators), who are explicitly excluded from the calculations in Bill 26. And the category of part-year employment does not perfectly map onto the “employed for six consecutive months” criterion of Bill 26. Further, the average number of employees is likely to mask significant differences between a small number of large and/or labour-intensive operations (with more than 3.5 workers each) and a very large number of operations with fewer than 3.5 workers each.

That said, we can draw some tentative conclusions based upon this data:

• Almost all employees on farms that employ only part-year workers will be excluded from employment standards and mandatory injury insurance because these employees will be excluded from the employee count due to the short duration of their employment and, thus, will push the farm below the “more than 5” threshold.
• Many workers on farms with at least some full-year employees will also be excluded because the farm will still be below the “more than five” threshold.

I would estimate that Bill 26 will exclude workers on 80% of farms from basic employment rights guaranteed in legislation and the requirement to have at least some form of injury insurance.

Absence of Rationale

Bill 26 will have a significant deleterious effect on farm workers, who are already economically vulnerable. Oddly, there is seemingly no compelling reason to make these changes. In the press release announcing Bill 26, the government asserts that the bill “fulfils the government’s commitment to consult with farmers and ranchers to build farm workplace legislation that works for them.”

This rationale ignores that the purpose of employment legislation is primarily to protect workers from, and attenuate the consequences of, exploitative and injurious work. Bill 26 entirely ignores the primary purpose of employment law. Instead, the government emphasizes the need to minimize the direct and indirect costs of regulation for employers in order to address the “damaging policies of the previous government to ensure sustainable farms.”

There is, however, no evidence that the provision of basic employment rights to farm workers in 2015 resulted in significant economic harm to agricultural employers. For example, there has been no change in the trajectory of farm numbers, which has been slowly diminishing since the 1940s (mostly through the consolidation of smaller, unviable farms into larger ones).

Obfuscation of Effect

The government’s press release goes out of its way to obscure the actual impact of Bill 26:

• Allowing farmers to purchase inferior or no injury insurance (thus leaving workers vulnerable to being uninsured or underinsured) is framed as “allow[ing] employers to have choice".
• The elimination of basic employment rights (e.g., minimum wage, child labour laws, job-protected parental leave) for most farm workers is framed as “reducing regulatory costs” and the practical impact on workers is ignored.
• Precluding workers from forming or joining a union (thereby violating workers’ freedom of association) is not even mentioned.
• Eliminating most detailed safety rules (which will make farms less safe) while retaining only the most rudimentary of safety rights is framed as “ensur[ing] basic safety standards on all farms”.

Overall, the government’s communication about Bill 26 has been heavily torqued and the impression it gives about Bill 26’s impact is misleading.

Analysis

Overall, Bill 26 has three broad effects. First, its strips farm workers of basic employment rights enjoyed by every other worker in Alberta. This includes the right to join or form a union, the right to be enrolled in workers’ compensation, and (for 80%) the possession of basic employment standards rights. It also eliminates the application of most safety rules.

Second, the elimination of farm workers’ right to join or form a union violates these workers’ Charter freedom to associate.

Third, these changes will reduce costs to agricultural employers by transferring them to workers in the form of poorer working conditions. Ironically, a bill touted to “help get Albertans back to work” makes paid farm work less attractive and may further intensify the agricultural labour shortage.

In rolling out Bill 26, the government has intentionally hidden the negative consequences of the bill and ignored the absence of a defensible rationale for these changes. It is difficult to see the changes as anything other than political pandering to farm operators and their allies while punishing vulnerable workers.

-- Bob Barnetson

New course: LBST 415: Sex work and sex workers

After more than a year of work, LBST 415: Sex Work and Sex Workers is now open for registration, with new intakes on the first of every month. This course examines the operation and regulation of sex work in Canada.

The course focuses on the experiences of sex workers—often told through their own writings—to identify how the structure and regulation of the sex industry affects them. This includes examining how sex workers experience exploitation and exert agency over their lives at the same time.

Of particular interest is how different jurisdictions approach regulating sex work. These very different approaches result in better and worse working conditions as well as shape the relationships between sex workers and law enforcement, managers, and clients.

This course is not for the faint of heart. But if offers students in labour studies, women’s and gender studies, or sociology with an opportunity to explore this very interesting intersection of work and sex.

-- Bob Barnetson

Will Alberta's unions resist?

Two weeks ago, a friend and I were kicking around labour’s response to the Kenney government’s series of attacks on workers’ rights. In no particular order, they include:

• Forcing votes on union drives no matter the level of worker support.
• Interfering in signed collective agreements and then demanding rollbacks of 2-5%.
• Giving itself the power to enact secret and binding bargaining mandates on public-sector employers, thereby making future bargaining almost meaningless.
• Transferring management of some public-sector pensions to a lower-performing management company, perhaps to shore up the oil-and-gas industry.
• Looking ahead, likely public-sector layoffs.

The question we wrestled with was whether these actions were business as usual for conservative governments (resulting in perfunctory union resistance) or if (perhaps together) they represented an escalation that would trigger a significant response from labour.

The basic deal underlying modern labour relations is that (1) employers agree to bargaining in good faith with unions and (2) unions agree to limit strikes to small, predictable windows. This all gets codified in labour law that the state administers.

The state isn’t, of course neutral, being both an employer itself and beholden to capital. And there are many examples of governments having bigger or smaller goes at organized labour (Klein, Harris, Redford, but cf Harper and Ford). For the most part, though, conflict tends to be episodic, contained and relatively muted (quiet cooperation is actually the norm). This reflects that governments are interested in social stability. (More recently, Charter-based restrictions on what they can get away with in the medium term).

Unions generally cooperate with governments because there are organizational benefits to doing so and penalties to resisting. In practice, there is a degree of mutual accommodation, worker demands tend to be monetized, and the union manages any worker discontent. (These dynamics are described by labour scholars as incorporation, economism, and bureaucratization.)

When governments pick fights with unions, this can embolden the more radical voices with unions. Union often act to manage demands for overt conflict by emphasizing communication-based responses and seeking to reign in direct job action.

Union responses to Kenney’s recent series of attacks have been a bit different. There certainly has been an air war, but unions are also investing resources in developing the capacity of their members to take direct action against their employers (whether the government or a government-appointed agency, board or commission).

It is an open question whether Alberta unions have any real appetite for worker-directed job action (e.g., sick outs, over-time strikes, wildcat strikes). My friend correctly noted:

• Alberta’s labour movement has a history of folding up when labour conflicts with the government start to intensify (as they did in 1995),
• certain unions have folded up their tents early in exchange for favourable deals (e.g., Alberta Teachers Association), which often makes it difficult for other unions to buck the pattern these unions set, and
• there will almost certainly be significant financial and legal costs if workers engage in an illegal strike. (And, given Kenney’s history as a federal politician, I suspect that any job action will be illegal or will become illegal almost as soon as it happens.)

I countered that unions are spending resources to develop the member infrastructure necessary for direct action. This suggests that unions (1) see direct action as a viable counter-weight (although perhaps more as a threat, than a weapon), and, (2) by mobilizing members, must be prepared to accept whatever risk of unplanned job action that accrues from having mobilize members. (I'd had a lot of coffee at this point and was maybe a bit amped up!)

Obviously, labour is not monolithic. Different unions (and even different locals within one union) can approach matters differently. For example, Alberta’s faculty associations have very different takes on how to proceed in the face of funding cuts and expected rollback demands. These sorts of tensions enable the government to pick off the weakest unions and reduce the size of the strike threat.

So far, the Alberta Union of Provincial Employees, the Health Sciences Association of Alberta, and the Canadian Union of Public Employees seem to be talking the toughest. I’ve no sense of where the United Nurses of Alberta are on job action. They have hired organizers and they are fighting with the government in court. But I wonder about the organization’s willingness to strike illegally. The willingness of the teachers to resist (they have taken 6 zeros in 7 years) is also an open question.

The answer may come down to how hard Kenney goes at unions. The harder the government attacks, the fewer incentives there are for unions to retrain calls for direct action. And the harder it is for the conservative elements within unions to resist demands for direct action.

A different way to look at this question is how far is the Kenney government prepared to go to achieve whatever its goals might be? The harder the government pushes, the greater the risk that it will end up triggering profound social disruption (e.g., workers walk out). What this would achieve is a bit of  mystery. Perhaps it could be used as a pretext for radical revision of the basic deal that underlies labour relations (although it's not clear who that benefits). Perhaps it is simply ideological or a distraction from some other project.

-- Bob Barnetson

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Athabasca seeks 2% rollback from support staff

Last week, Local 69 of the Alberta Union of Provincial Employees (which represents support staff at Athabasca University) received a letter from the university’s director of HR, Charlene Polege. The letter provides some insight into how public-sector labour relations are proceeding under the Kenney government.

Some quick background: AU and AUPE are presently in the last year of a three-year deal. This contract included a two-year wage freeze plus a wage-reopener in year three. If AU and AUPE could not agree on a wage settlement, the wage issue would be referred to arbitration. Negotiations on the re-opener never got started (in part, because Bill 9 stalled the arbitration process) but things appear to be getting back on track.

Consequently, AU sent AUPE a letter last Tuesday that read (in part):

This letter is to provide you with notice that Athabasca University has been given a mandate by the Alberta Provincial Government with respect to the 2019/2020 wage re-opener, and that as a result, Athabasca University anticipates that it will be tabling a proposal of negative two percent (-2%) when negotiations resume. 

We wish to be clear that the Board of Governors of Athabasca University is responsible for setting its mandate with respect to the 2019/2020 wage re-opener. There is sufficient certainty at this time that the Board of Governors will adopt the above-noted position in negotiations. As such, and regardless of whether or not Athabasca University was required to disclose its position in the circumstances, it wishes to provide this information to AUPE in the interest of transparency.

So, the government gave the university a bargaining mandate, but did not disclose what the mandate is. But, “as a result”, the university will be tabling a 2% rollback as its opening proposal (AU had previously proposed 0%). Given that this rollback jives with statements by the Minister of Finance about seeking a 2% rollback from AUPE at other tables, I think we can safety assume that the government’s mandate was -2%.

Yet, in the next sentence, Polege states that “the Board of Governors is responsible for setting its mandate with respect to the 2019/2020 wage re-opener.” That sentence sits oddly with the meaning of the word mandate (i.e., a binding directive from the government). Hmmm.

So let’s unpack this letter:

• there is a (apparently secret) government mandate,
• but somehow that mandate isn’t binding on the Board,
• but the Board (miraculously) adopted the exact same mandate,
• and is now seeking to grind the wages of the employees in its lowest paid, mostly female, and mostly Athabasca-based bargaining unit,
• even though AU ran a $14m (~10%) operating surplus in 2018/19 and will run a big surplus again (~$10m) in 2019/2020 despite small cuts (~$3m) in operating grants and could easily afford a small cost-of-living adjustment,
• all while the university continues to hire more and more senior administrative staff.

That messaging probably isn’t going to help with the pitifully bad morale among AU staff or concerns about the local economy.

And the tortured “there’s a mandate, but there isn’t, but there is” dance does nothing to remedy the large and growing number of employees who don’t trust senior administrators to be honest (or even coherent).

While this AUPE wage reopener is almost certain to go to arbitration, it matters because it shows us what the next full rounds of bargaining (starting in the spring of 2020) are going to look like at AU, in PSE, and the public sector more broadly.

I think we can reasonably expect:

• secret government mandates for salary rollbacks (which may be unconstitutional),
• PSE executives being used as human shields by conservative politicians (meh?), when this “I gotta talk to the manager in the back” bargaining tactic goes badly,
• PSE students seeing significant disruptions in their studies when staff engage in strikes or get locked out, and
• the fabric of the institutions (which, despite being big bureaucracies, run only because staff are conscientious and have long-standing relationships with coworkers) further fraying as staff decide “fuck it” and start doing the just minimum.

This is a shameful way for politicians, Board members, and university administrators to treat their staff (especially support staff). About the only bright spot is that many PSE employees are recognizing that they are workers and will need to fight their employers (and the government), just like every other worker.

-- Bob Barnetson

Budget 2019: Bad news for labour market training in Alberta

There has been much written about the Kenney government’s attack on organized labour in its 2019 budget (which include layoffs and wage freezes, as well as interfering in ongoing arbitrations and future collective bargaining). Alberta’s 2019 budget also purports to improve labour-market training opportunities in order to get Albertans back to work:

“Supporting a highly skilled labour force and a competitive business environment will make lasting contributions to Alberta’s economy. Alberta will once again become the destination of choice for investors and skilled workers.” Travis Toews, Minister of Finance

A closer examination of the labour-market training pieces of the budget suggests this is mostly smoke and mirrors. The government is reducing its funding of post-secondary institutions (which do most of the training) by 5 per cent this year. The institution-specific cuts are unevenly distributed with no suggestion that the cuts reflect anything other than capacity to absorb the cuts. 

These cuts hamstring institution’s ability to deliver the education and skills training alleged desired by the government. Even more concerning is analysis that suggests that additional cuts of 20 to 25% are planned by 2022/23.

These cuts are to be offset, in part, by rapid tuition increases, with institutions allowed to increase tuition by 7% per year for the next three years. Tuition increases, combined with eliminating the tuition tax credit, reducing the teen minimum wage, and closing the Summer Temporary Employment Program (STEP), will make it much harder for students to afford to enroll in post-secondary education and training.

So, if you are playing along at home, your bingo card now shows fewer training opportunities that are less accessible to future workers. Sounds promising, so far!

While governments frequently talk about addressing skills shortages, the evidence that skills shortages actually exist is weak to non-existent (there is a long line of research suggesting that a great many workers are actually under-employed). When there are skills shortages (which tend to be industry specific and geographically localized), such shortages are often difficult to predict and almost impossible for institutions to react to (because mounting and delivering training takes time and the labour tends to adjust). 

A new post-secondary funding mechanism (likely with labour market metrics) is to be introduced in the coming months. This was tried in the mid-1990s and basically didn't work. Meh.

Expected skill shortages in the skilled trades are a recurring UCP talking point. The key barrier to qualifying more trades people lies with employers’ unwillingness to offer adequate apprenticeship opportunities. The last data I saw showed that only 19% of employers that use qualified trades people participate in training apprentices. More money (or more directive finding mechanisms) for post-secondary institutions won’t alleviate that bottle neck.

The government also announced an additional $4 million to expand work experience and apprenticeship programs for elementary (!!!), junior and senior high-school students. The current Registered Apprenticeship Program (RAP) provides a useful pathway for students interested in the trades. But there are issues.

Research suggests that Alberta students sometimes struggle to find apprenticeships and the female participants struggle against long-standing gender discrimination. One in five students reports an occupational injury during a RAP apprenticeship. One in twenty RAP participants (whom we should remember, are kids) is injured so severely that they cannot work in the field.

Overall, there is little reason to believe that the Kenney government is serious about enhancing labour market training opportunities. Rather, this appears to be an elaborate rhetorical offensive to distract Albertans from the profound damage that public-sector cuts will do post-secondary education. These cuts, of course, are necessary only because the Kenney government gave away $4.5 billion in corporate tax breaks. (Which, as predicted, corporations pocketed, instead of creating jobs).

-- Bob Barnetson

Presentation: OHS convictions and fines in Sk and AB

Last Friday, the Alberta Workers’ Health Centre hosted a presentation by Sean Tucker (University of Regina). Tucker is in the process of examining OHS prosecutions, convictions and penalties in Alberta and Saskatchewan. Sean graciously consented to allow me to present some of his slides. This is still a work in progress, so the data and the conclusions should be considered tentative.

Both Alberta and Saskatchewan have secured about 110 OHS-related convictions between 2009 and 2019. Alberta has about four times the population of Saskatchewan. If you controlled for population, Saskatchewan would have secured twice as many convictions for fatalities and nearly 5 times as many convictions for serious injuries. Interestingly, Alberta has more than twice as many OHS prosecutors as Saskatchewan.

The median (midpoint, not average) fine associated with prosecutions of organizations is much higher in Alberta than in Saskatchewan. The same pattern holds true for prosecutions of individuals but the fines are much lower.

A compelling presentation of the data compares the average (and highest) files for OHS fatalities and serious injuries with the maximum potential fine. (One addendum to this slide: the maximum fine for a first conviction in Alberta is $500k; the $1m ceiling is for second and subsequent convictions).

What the slide above shows is that, despite general deterrence being a key purpose of fines, neither Alberta nor Saskatchewan has had much luck securing anywhere near the maximum penalty. There are a number of reasons for this (including sentencing considerations).

One of Tucker’s questions was whether increasing the maximum Saskatchewan penalty from $300k to $1.5m would result in higher fines. The answer, after 5 years, is no for fatalities but perhaps yes for serious injuries (although both fines remains well below the maximum). This analysis provides some support for criticisms that potential fines are often far higher than actual fines.

The post-presentation discussion (which continued during a small lunch gathering) was quite interesting. A key question was whether jailing employers who kill workers might serve as a greater safety incentive than increasing fine levels.

-- Bob Barnetson

OHS convictions and penalties talk Friday, Edmonton

This Friday, the Alberta Workers' Health Centre will be hosting a talk by Dr. Sean Tucker (University of Regina) in Edmonton that examines OHS convictions and penalties in Alberta and Saskatchewan. This should be an interesting talk and admission is free.

An analysis of financial penalties for OHS convictions in Alberta and Saskatchewan, 2009-2019

Friday, October 25, 10 to 11:30 am

Alberta Workers' Health Centre Board Room
6th Floor, 12323 Stony Plain Road
Edmonton, Alberta

Dr. Tucker will present results of an analysis of financial penalties resulting from OHS prosecutions in Alberta and Saskatchewan between 2009 and 2019. 

The analysis will highlight differences in the size of penalties within and between these two Prairie provinces, and by type of incident (i.e., serious injury vs. worker fatality). Implications for deterrence and injury prevention will also be discussed.

-- Bob Barnetson

CLC is struck; AUPE prepares to strike

There have been two interesting developed in Alberta’s labour scene this past week.

Last Tuesday, staff employed by the Canadian Labour Congress (CLC) began a strike against the CLC. The strike follows two years of bargaining. According to the union, the CLC is trying to roll back anti-harassment language, conduct a job evaluation (which is code for grinding wages by reclassifying work downward,) and a substandard wage settlement.

The workers are presently 15% behind the average wage in their field but the union is only seeking small and retroactive cost of living adjustments (1.6%, 2.3% and 3.45%). The workers also want their pension plan cap removed. This reflects that the pension plan has suffered substantial erosion since 2011 (i.e., the CLC is saving money by grinding its workers’ pensions).

The employer is offering a one-time payment of $1000 plus increases of 1.75% and 3.45% in the last two years of the agreement and one extra day off. This low-ball offer comes (of course…) after a significant bump to the salaries of the CLC President, VPs, and Secretary-Treasurer in 2017 followed by indexing to the consumer price index.

It is difficult to fathom why the CLC would want to precipitate a strike, but unions are notoriously shitty employers of their own staff. I’m not sure how credible the CLC will be going forward advocating for workers when it treats its own staff so poorly.

There is only one CLC worker employed in Alberta but she has put up an impressive picket line, bolstered by other labour activists and union officials. There have been two interesting absences from this picket line.

First, none of the elected staff at the Alberta Federation of Labour have attended the picket-line (which has been happening 12 blocks from the AFL offices). Federation of Labour officials in virtually every other province have joined CLC staff on their picket lines.

Second, no New Democrat MLAs have appeared, despite the picket line occurring next door to Edmonton centre MLA David Shepherd’s constituency office. While ND MLAs are happy to participate in photo-ops at labour events (and labour leaders have no option but to make nice), this masks a growing distance between the party and labour activists. Some of the back story can be found here.

The second story was the Alberta Union of Provincial Employees (AUPE) held its 43rd convention. This included a rally at the Legislature.

The expected serious public-sector cuts and legislative attacks on workers right are driving unions to cooperate in ways that they haven’t in recent memory. The presidents of the United Nnurses of Alberta, the Health Sciences Association of Alberta, and the Canadian Union of Public Employees were all present at the convention and rally. These unions have had strained relations but a common enemy is a wonder salve for old wounds.

The expected cuts is also driving unions to prepare for job action (at least some of which will likely be illegal). Union leaders used war metaphors, talked about direct action against employers, and explicitly discussed illegal strikes if the government picks a fight. The budget later this week will give us a good sense of how quickly things are going to heat up.

-- Bob Barnetson

CAUT bargaining simulation

Fraternizing? The bargaining teams intermingling. 

Two weeks back, I spent two days in a bargaining simulation, hosted by the Canadian Association of University Teachers. This simulation was a shake-down cruise for the new Athabasca University Faculty Association (AUFA) bargaining team as it prepares to go to the table in March or April of 2020.

Whatever the limitations of a simulation, the dynamics at the table felt real--there was stress, posturing, and implicit threats (athough it was still much politer than dealing with our actual employer!). Those of us not on the actual union bargaining team got to play the employer team in the simulation. This was a fascinating experience after seven rounds on the union side.

The post-simulation debrief identified three common experiences on the employer side of the table.

Unity of Goals: Unlike the union (which must mediate the interests of various subgroups), the employer had a unified mandate. This made it much easier to evaluate the other side’s proposals and game out possible responses.

Emotional Disengagement: We were all surprised how little emotional investment we had in the process or our proposals. This was largely a technical exercise for the employer team and, so long as we met our mandate, how we got there was immaterial. Further, the proposals had no personal impact on our working lives so we did not sweat the details. This was the least stressed I've ever felt at the table.

Power: The ability of the employer to refuse union proposals largely without consequence was fascinating. While the union team did have a strike threat, we judged it unlikely that they would strike on any issue but money. While we did have a mandate to get changes, if none were possible, status quo was not as harmful for the employer as it was for the union.

Overall, it was fun (and easy) to bargain on the employer side. And the experience helps explain why the employer often appears unprepared or disinterested at the table: the outcome of bargaining just doesn't matter that much unless there is a strike threat in play.

This was also a very good shakedown cruise for the union side. They got a chance to work with one another, experience the stress of making time pressured decisions, and cope with the sea of paper that is generated. I would say they are more prepared to bargain than any past AUFA team. 

Thanks to AUFA for hosting and CAUT for facilitating the session.

-- Bob Barnetson

Bizarre survey reignites "jobs in Athabasca" issue

A recurring issue at Athabasca University is the slow loss of university jobs from the town, mainly to the Edmonton area. While there was some recognition that this was a problem by former New Democrat government, the government took no action to resolve it and the entire senior leadership of the university decamped to Edmonton, St. Albert, and Calgary.

Recognizing that job loss at the town’s largest employer was potentially politically problematic, the university struck a committee (that included residents of the town) to discuss the issue and held an open-house in June. The open house infographic claims a 71% increase in Athabasca-based staff between 1985 and 2019. While probably true, using two data points 34 years apart disingenuously obscures the rise and fall of employees in intervening years. The university was also invited to join Athabasca County’s Tourism/Economic Development Committee.

There has been little concrete progress on this issue for several years beyond some sporadic language in job postings about giving preference to candidates who will live in Athabasca. In mid-September, a group of prominent Athabasca residents (mostly Conservative business people and politicians) arranged a meeting with the new Minister of Advanced Education to discuss this issue (and, specifically, the departure of senior university leaders). While this meeting was postponed (possibly at the request of the university), it suggests this issue is not going away.

This week, Athabasca-based AU employees received an invitation from the university to complete a survey designed “to help develop strategies to drive discussions on building a sustainable local community.” The survey appears intended to feed into the work of the Athabasca County’s Tourism/Economic Development Committee (although this is unclear). The survey itself is, to say the least, bizarre and appears to be hosted by 13ways.ca, a consulting company run by former Conservative MLA Doug Griffiths.

The survey asks a variety of yes/no questions about respondents’ perceptions of the community’s trajectory, drinking water (?), local spending, municipal flower plantings, various questions about strategies and partnerships (that respondents almost certainly can’t answer), seniors housing, and in-migration. A “bonus question” asks respondents to choose a community slogan from a list of negative options (at the bottom you can select none of the above). I have reprised the list of slogans below—it is quite shocking.



Presumably, this survey and the bonus question (which appears based on Griffiths’ book “13 ways to kill your community”) is designed to identify problem areas that Griffith’s consulting firm would be poised to help remedy. Whether this survey is valid or reliable (even in the most casual sense of the word) is a very, very open question (if this was student project, I’d give it a D).

Why the university would be sending this out to their employees to fill out is a good question. The survey suggests that there is something wrong with the Athabasca community that must be remedied (which is not true). This framing allows the university to shrug, say “no one wants to live there”, and absolve itself from any responsibility for the loss of jobs in Athabasca.

In fact, what has happened is that the university has been voluntarily transferring jobs out of the community for years. This job loss could be stopped literally overnight if the university simply started hiring more positions to Athabasca. There is no impediment to this: there is space and there are candidates who will move there.

That the university won’t do that and, instead, sends out silly info graphics and surveys, tells Athabasca community members pretty much all they need to know about Athabasca University’s actual commitment to the community. It would be pretty funny if all of AU’s ducking and weaving on this issue resulted in the government directing all senior executives to live and work in town.

-- Bob Barnetson

Workplace injuries and leading indicators in Alberta

This summer, researchers with the Institute for Work & Health released a study looking at occupational health and safety vulnerability in Alberta (apologies that I can't find a link to the report- I received it by email). Essentially, they surveyed workers in Alberta (n=1026) about their OHS experiences and circumstances and then did some analysis and comparisons to BC and Ontario.

Some basic descriptive stats about Alberta workers:

• 58% were exposed to workplace hazards on a weekly basis
• 42% had inadequate workplace OHS policies and procedures
• 37% had inadequate OHS empowerment
• 23% had inadequate OHS awareness
• 36% of Alberta workers were deemed vulnerable because of exposure to hazards with inadequate protections on one of more dimensions.

Workers were also asked about their experiences of OHS outcomes

• 28% agreed they worried about getting injured or ill from work
• 19% reported a physical work-related injury in the past year
• 18% reported a mental work-related injury in the past year.
• 55% of injuries required time off from work
• 19% of injuries were reported to the WCB 

The study also found (not surprisingly) that workers with the highest level of OHS vulnerability were the most likely to worry about and experience an injury (see screen cap below).


This study broadly confirms prior studies of worker self-report of injury in Alberta (e..g., roughly 1 in 5 experience physical injury; time off due to injury is often required but goes unreported to the WCB). It useful helps identify some leading indicators of workplace safety: workers who report adequate protections appear to be at a lower risk of injury.

-- Bob Barnetson

Film: American Factory

Netflix has recently released a new documentary entitled American Factory. This film chronicles the opening of a branch plant of Fuyao Glass America in economically depressed Dayton, Ohio by a Chinese billionaire. The location has previously been the site of a General Motors plant that was closed, putting thousands of workers out of a job.

The documentary (which notably includes no narration) tracks the first two years of the factory's operations and the clash of cultures that it entails. A trip to China for American workers--and the failure of the management strategies that they tried to bring back--was particularly striking. The vulnerability of the local workforce to exploitation and their awareness of their vulnerability is nicely captured.

The film explores the relentless work of employers to shed jobs and increase productivity (regardless of the cost to workers). It also does a nice job of exploring the tactics of both the union and the employer during a union drive.

-- Bob Barnetson

Is a general strike in the offing for Alberta?

I attended an information picket hosted by the Alberta Union of Provincial Employees (AUPE) last Tuesday. This picket was one of many AUPE is hosting to voice its members’ opposition to Bill 9, which the government passed in order to break collective agreements and stall wage arbitrations for public-sector workers.

AUPE (and other unions) have been organizing pickets all summer. These pickets are designed to channel and publicize public-sector workers’ anger. They also normalize picketing and are useful in identifying and training a new cadre of union activists going into what will likely be a difficult period for unions (legislated wage rollbacks are expected this fall).

The tone on this picket line was notably chippier than the one I attended in July. There were lots of cars honking in support. The only negative feedback I saw was from one (of course) pickup driver. I didn’t catch what he shouted but the shouted response from several female healthcare workers was “I hope you never need anyone to wipe your ass in hospital!”

There were the usual rah-rah speeches. A notable departure from the usual talking points was made by AUPE President Guy Smith who said (and this is a slight paraphrase) these pickets are practice for a general strike because, if the government won't respect our rights and the courts won’t force them to, a general strike is our only option. As an aside, general strikes were the subject of a very interesting analysis by Organizing Work a few weeks back.

Union leaders have studiously avoided talking about an illegal strike in public until now. The Court of Appeal overturning the injunction against Bill 9 and the MacKinnon panel musing about legislated bargaining mandates, back-to-work legislation and the notwithstanding clause may have contributed to this change in tone. Essentially, if the government is set on denying workers any meaningful legal recourse when the government violates the Charter and breaks collective agreements, the only option (as Smith suggested) is to take to the streets.

An interesting question is whether this speech was a calculated warning shot designed to sober up the government, a emotionally driven response to a tough couple of weeks for the labour movement, or an honest communication to workers about where things are heading? I’m inclined to think there is a bit of all three explanations at work.

If you’ve ever crossed swords with him, you’ll know that Smith is passionate and can engage in some… errr… rhetorical excess when he gets pissed off. That’s not to say he isn’t savvy and calculating (he definitely is both those things). Indeed, he may be leveraging the apparent ineffectiveness of legal options as a way to pressure other labour leaders into taking a more aggressive stance than they might otherwise be inclined to.

His comments may also have beeb an effort to warn the government of the consequences of their intended course of action. Jason Kenney’s spat with Amnesty International (of all groups) this week suggests that this kind of warning is likely just going to amp up a government that is already demonstrably intemperate and thin-skinned. I presume Smith knows that. Perhaps Smith is making lemon-aide: there’s gonna be a fight, so its best to goad Kenney into (further) overplaying his hand because a boss who’s being a complete asshole is a great asset to unions.

And telling workers there’s going to be a fight (especially a sympathetic crowd like people who picket after work) is a good way to start inoculating workers against the fear and smear campaign the government will likely run in conjunction with any legislation. It’s also the honest and right thing to do.

-- Bob Barnetson

Rethinking Alberta's essential services legislation

This post original appeared on the Parkland Institute blog.

In January 2015, the Supreme Court of Canada ruled that "[t]he right to strike is an essential part of a meaningful collective bargaining system" and effectively made blanket bans on public sector strikes unconstitutional. As was required of all provinces in the wake of the ruling, Alberta's then-New Democratic Party (NDP) government enacted legislation in 2016—Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services—that granted most public-sector workers the right to strike as long as essential services were maintained.

Alberta's public sector unions were broadly supportive of this change, as the right to strike was expected to incentivize public sector employers to bargain more earnestly than they did when bans on public sector strikes were in place and disputes were resolved by arbitration. That this right to strike was subject to limits to maintain essential services was (at least publicly) described as a fair trade-off.

During the 2019 provincial election, the United Conservative Party (UCP) promised a raft of changes to provincial labour law, including replacing the portion of the current essential services provisions that bars the hiring of replacement workers when there is an essential services agreement (ESA) in effect. The UCP's expected amendments to Alberta’s labour laws to provide an opportunity to reconsider how to best reconcile workers' right to strike with protection of the public interest.

Interests during work stoppages

A work stoppage—either a strike or lockout—is a contest between a union and an employer. Each side applies economic pressure to the other in the hope of achieving a more favourable settlement than it could otherwise negotiate.

Unions apply pressure mainly by denying the employer their members' labour. In the case of a private-sector employers, a strike is effective by reducing the profits of the employer. By contrast, a strike generates political pressure on public sector employers because they are unable to deliver the services they are mandated to provide. In both cases unions generally want as many of their members to be on strike as possible to maximize the pressure on the employer.

The state has enacted labour laws that create significant procedural obstacles to work stoppages. These barriers, such as compulsory mediation, don't ban work stoppages but drag out the process and make it harder for unions to build support for strike action. While these laws formally apply to both unions and employers, in practice they weigh more heavily on unions.

For their part, employers use a variety of techniques to weaken a union's strike power, including hiring replacement workers (sometimes called "scabs"). Scabs allow the employer to keep operating (to some degree) while the striking workers go without a salary. The only limit on the use of scabs in Alberta is a ban on using replacement workers when an ESA is in place.
Alberta’s essential services legislation

Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services amended the Labour Relations Code and Public Sector Employee Relations Act. The key changes were:

• The default dispute-resolution process when public sector bargaining reaches impasse became strike-lockout (excepting firefighters and police officers, who continued to use mandatory arbitration).
• Where employees performed essential services, an ESA had to be negotiated before the parties could access mediation, hold a strike vote or lockout poll, or commence a work stoppage. An essential service was defined as one where (1) the cessation of the service would endanger the life, health or safety of the public, or (2) the service is necessary to maintain the rule of law or public security.
• ESAs are negotiated between the union and employer under the oversight of a commissioner appointed by the government. The parties may engage the services of an umpire to assist them in settling the terms an ESA.

Once an ESA is in place, the employer is prohibited from hiring (or otherwise acquiring the services of) replacement workers during any work stoppage. If an employer is deemed to provide no essential services then there is no prohibition on hiring scabs.

Unlike the other procedural requirements that must be met before a work stoppage can begin, essential services legislation is not formally even-handed. Rather, it is designed to diminish the effectiveness of a strike (and thus the union's leverage) in order to protect the public, which would be harmed if hospitals suddenly closed or the water went off. In contrast, the only part of the existing essential services legislation that in any way diminishes employer's leverage is the ban on using scabs. As previously mentioned, the UCP has promised to repeal this ban on hiring replacement workers.

ESA effects on interests

Alberta's current essential services legislation is far from perfect and appears to have created unexpected and sometimes perverse outcomes. In some cases, the legislation incentivizes employers to seek to evade their obligation to protect the public interest in order to increase their bargaining power, and in some cases effectively renders moot workers' right to strike.

Consider public sector employers that provide relatively few essential services, such as post-secondary institutions. The replacement-worker ban incentivizes these employers to try to avoid negotiating an ESA so the employer can use scabs to undercut the unions' strike power. To the degree that these employers can and do evade an ESA, this incentive undermines the protection of the public interest.

There are, of course, checks and balances in this system. An employer that wants to avoid an ESA must convince the Essential Services Commissioner that the employer provides no essential services. This sounds like a good system, but practically speaking the only way the commissioner would know if the employer was lying is if the union opposed the application. If the union decided not to fight for an ESA, employers could gain an exemption.

A union might choose to not fight for an ESA because such a fight delays the union's ability to move into a strike position. Some public sector employers have been very successful in drawing out ESA negotiations for months by rejecting the need for an ESA or by delaying the disclosure of information necessary to negotiate the ESA. Stalling the conclusion of an ESA undermines workers' right to strike, which is already delayed by other legislative requirements, and can sap a union's capacity to strike. In the meantime, the employer continues operations and the workers do without whatever concessions they were seeking in bargaining.

That unions might not choose to fight for an ESA is a real risk. After six months of employer stalling, my own union had to decide whether we should put the public interest (i.e., advocating for an ESA) ahead of our members' economic interests (i.e., getting to a strike position as quickly as possible). In the end, we decided to protect the public, in part because we also benefited from the scab ban, but that decision could easily have gone the other way.

ESAs and illegal strikes

The ability of employers to delay the negotiation of an ESA also heightens the risk that workers will engage in illegal work stoppages. This is a very real risk in the health- and seniors-care systems, where workers provide many services that are essential. In these workplaces, the essential services legislation incentivizes employers to seek to have virtually the whole workforce deemed essential.

For example, consider a long-term care facility where 85 or 90% of the services have been deemed essential. The tiny fraction of union members who can legally strike can walk the picket line eight hours a day, week after week, in fair weather or foul, but this strike has little chance to succeed because business basically continues as normal. This dynamic undermines the public-policy objective of protecting workers' constitutional right to strike by allowing them only a meaningless strike.

In some ESA negotiations in seniors care facilities, employers have actually argued for a level of staffing during a work stoppage that is higher than the level of staffing with which the employer normally operates. Attempting to find the true level of staffing required to maintain essential services has proven to be an nearly insurmountable problem. Often, whether a task or a job is an essential service is not clear, and employers—who hold most of the information—have an incentive to shade this information. Umpires can be reluctant to rule against employers because the risk of being wrong is that someone could die as a result.

The patience of union members is not endless, and at some point the workers will simply (albeit illegally) walk out. Illegal (or "wildcat") strikes are profoundly disruptive and can bring about the disruption of truly essential services that ESAs are specifically designed to prevent. In these cases, the ESA process itself also undermines the public policy goal of protecting the public. While unions face severe financial penalties for wildcat strikes, they may well turn a blind eye to pending wildcats because they know it may be the most effective to resolve a bargaining impasse.

Analysis and options for reform

Overall, Alberta's experience with ESAs suggests they significantly impede workers' constitutional right to strike. So why did the worker-friendly NDP government enact legislation like this? The answer is likely that the government had to respond to the 2015 Supreme Court ruling while trying to balance the interests of workers and the public. Essential services legislation offers a widely accepted (if ineffective) way to do this. It also creates further barriers to effective and legal public sector strikes—which was in the NDP's interest while in government.

The UCP’s election promise to eliminate the replacement worker ban will have three effects:

1. For employers with few essential services, eliminating the scab ban eliminates one incentive for employers to resist an ESA. Employers may still stall negotiation to delay job action.
2. For employers with many essential services, eliminating the scab ban has no effect on the incentive to seek an overly inclusive ESA or stall negotiation to delay job action.
3. For unions, the removal of the scab ban further undercuts their ability to mount a meaningful strike by giving employers the power to hire replacement workers in addition to being able to stall strikes and negotiate overly expansive ESAs.

The key problem with the current approach is that the process incorrectly assumes that both parties will put the public interest before their respective self-interests. In doing so, it simply creates another venue for employer-union conflict.

Assuming the UCP government follows through on its promise to eliminate the ban on scabs, workers may be better off with an alternative approach to protecting the public interest. For example, employers might be granted a fixed window of time during which they must develop a plan by which to maintain essential services. After this time period has passed, all union members can go on strike or be locked out (assuming the other legislative requirements for a work stoppage are met). This approach ensures the public interest is protected while minimally impairing the ability of public sector workers to exercise their constitutional right to strike. It does this by placing responsibility for maintaining essential services where it belongs: on public sector employers. The employer is best positioned to know what services are truly essential, and the employer can make whatever arrangements are necessary to protect the health, safety, and life of the public, as well as maintain public order.

This might include redeploying managers, hiring replacement workers, and/or negotiating some sort of voluntary and partial coverage with the union. The cost of such arrangements may also incentivize some employers to actually negotiate in good faith (thus reducing the risk of a work stoppage).

While workers would face no onerous legal restrictions on their right to strike, the strike power of unions would remain constrained by:

• some union members crossing their own union's picket line,
• employers aggressively planning to maintain services, and
• public sympathy for strikes waning over time as inconvenience mounts.

The thorniest question about this proposal from the government's perspective is how it can ensure the public interest is protected against an incompetent employer. The government can doubtlessly find ways to require planning and penalize incompetence in the civil service as well as among public sector agencies, boards, and commissions. Should a true threat to public safety arise, it can be dealt with under the public emergency provisions of the Labour Relations Code.

From the perspective of workers, the greatest risk of this proposal is that the government will collude with public sector employers to misuse the public emergency provisions of the Labour Relations Code in order to prevent effective strikes. For example, an employer might make no preparations and the government would then be "forced" to use public emergency (or other) provisions to stall job action. The only check against this sort of collusion is the potential for wildcat strikes. While the state can use the legal system to sanction illegal strikes, if workers and unions are willing to bear the sanctions that result, then the harm caused by the strike continues.

It is very unlikely that the UCP will make such a fundamental change to the essential services regime. This reflects that, like the NDP government that preceded it, the UCP government will benefit from the barrier to effective and legal public sector strikes created by the existing ESA provisions. Instead, the UCP is likely to simply remove the replacement worker ban when an ESA is in place, which will further tip the playing field in favour of the employer (i.e., the government) by delaying job action and undermining workers' strike power.

-- Bob Barnetson