More on COVID and OHS

Back in September, I blogged about how Alberta’s OHS inspectors seemed unwilling to address uncontrolled aerosol hazards in a workplace. My suspicion was that they and public-sector employers were facing political pressure from the government to ignore the risk posed by COVID to workers.

In October, an Alberta court ruled that the Minister of Education’s direction to school boards banning mandatory masking was ultra vires (she would need to enact a regulation). A month later, the UCP cabinet passed a regulation banning masking mandates as well as barring schools from switching to online-only classes. 

At the time this regulation was passed, schools were seeing unprecedented levels of staff and student absenteeism due to illness (due to a combination of COVID, RSV, and influenza—all airborne illnesses). Barring masking and online classes removed two very effective ways employers can control the spread of these diseases and protect workers (and children) from serious (and potentially fatal) illness.

Yesterday, Premier Danielle Smith announced that MLAs are calling organizations that are in receipt of government funding and asking them to rescind mandatory vaccine mandates. (At this point, vaccination provides modest protection against contracting COVID but does a good job attenuating the consequences of getting COVID. This still makes vaccination a useful component of any hazard--control strategy.).

According to CBC, Smith said:

"For instance, the Arctic Winter Games wanted $1.2 million from us to support their effort and they were discriminating against the athletes, telling them they had to be vaccinated," Smith said at a news conference in Edmonton on Monday.

"So we asked them if they would reconsider their vaccination policy in the light of new evidence and they did."

There was no indication what “new evidence” was offered to this organization. And, while no formal policy linking receipt of funding to rescinding vaccine mandates appears to exist (yet), the implicit threat to current and future funding is pretty clear.

At this point, I think the data is clear that public-sector employers have been told to (and, in some cases, legally enjoined from) taking the steps necessary to control occupational diseases. The government is also likely interfering in the enforcement of OHS laws (although the evidence here is more anecdotal). Not surprisingly, the result is a high level of avoidable work-related illness:



The data in the table above understates COVID claims in the public-sector because teachers are, for the most part, outside of the ambit of workers’ compensation legislation in Alberta.

What can workers do? Well, worker can wear masks, although single-person masking is much less effective than group masking. Workers might also get together and agree to group masking in the absence of employer support.

Work-refusal are also an option. But, since OHS seems unwilling to engage with aerosol hazards, refusals are likely to only work if they are carried out by a group that is prepared to risk sanction for engaging in an illegal strike. I see no appetite for supporting this kind of job action in Alberta’s labour movement.

Finally, workers can remember that the UCP was happy to sacrifice their health and their lives (and the health and lives of their children) in order to cater to anti-vax voters and cast their ballot in the next election with that in mind.

-- Bob Barnetson

Update on Athabasca's jobs fight with the government

Earlier this summer, I wrote about a fight between Athabasca University (on the one hand) and the government and residents of the town of Athabasca (on the other). The nub of it is that AU has been moving jobs out of the town for years, to the detriment of the local economy. (AU was moved to Athabasca in the 1980s to, in part, spark regional economic development.)

After years of AU ignoring the concern of local residents, a lobby group (funded by the town, county, and individuals) formed and it convinced the government this is a problem. Subsequently, the government directed AU to develop a plan to return jobs to the town. AU has repeatedly told the government to go pound sand. This month, things seem to be coming to a head.

In roughly chronological order, here are the details:

• March 2022: Then-premier Kenney public announced that AU will be locating more jobs in Athabasca. AU’s board of Governors was surprised by this announcement and fired back a shirty letter that got the then-Board chair Nancy Laird sacked. 

• June 2022: As directed, AU provided a plan to the government that, in the government’s view, does not address its expectations. No one knows what was in this plan because both sides, while fighting about the issue publicly, are keeping all the documents secret.

• July 2022: In response to AU’s intransigence, the government sent AU a new Institutional Management Agreement (IMA) that linked a portion of AU’s grant to moving about 500 of AU’s 1100 staff as well as the executive to town. AU’s president publicly derided this demand.

To be fair, this demand was impossible to achieve. There is inadequate housing and office space and there are complicated contractual issues with forced relocations. It is maybe best seen as the province staking out an aggressive bargaining position. The faculty association sent the minister a letter with several ways to address the government’s concerns. AU seems intent on ignoring its staff's idea (gasp!).

• August 2022: As the government’s deadline for AU to sign the IMA approached, the Minister appeared at a public Board meeting and indicated (1) some willingness to compromise on outcomes but (2) limited patience with AU’s obvious stalling. The threat was that, if some version of the IMA was not signed, the government would begin withholding funds.

• September 2022: AU failed to provide the government with detailed strategies or concrete commitments to achieve the government’s goals. This is likely AU stalling in the hope that the early October departure of former Premier Kenney (and maybe the Minister) would alter the political landscape and reduce the pressure on AU.

• October 2022: Right before Kenney’s departure, the government replaced a number of Board members. This is likely an effort by the government to break the current impasse by (1) stacking the Board and (2) showing the remaining Board members what will happen if the Board continues to resist (i.e., crucify one and the rest will get Jesus). It may also be a bit of political payback by Kenney. In the resulting cabinet shuffle, the current Minister retained his portfolio (ruh-roh, Raggy).

• November 2022: In early November, the Minister asked AU to convene a special Board meeting that he planned to attend in order to get the IMA signed. AU has resisted this, likely to buy time to inoculate new Board members against the Minister. Late last week, the government sent a new IMA to the Board (which has a bottom-line feeling to it) which requires 10% increases in local employment each year for the next three years and half the executive to move to and work from town. Since we haven't seen the new IMA and don't know the base number, it is hard to know how many new people would need to hired. If there is 300 people in town, that would be about 100 more over three years. 

Update 2022/11/23: Yesterday on CHED, the Minister twice said the demand was for 5% annual increases, which would reduce the local hiring. He also indicated 44% of executive will need to be based in two by 2024. Forty-four percentage suggests 4 members of a 9 member executive. Who counts is an interesting question.

I’m hearing that a Board meeting with the Minister will be scheduled late next week, ahead of (or in lieu of?) the regular December 9th meeting. It is unclear if the President will be in attendance. As someone who is potentially affected by the government’s directives, both the Conflicts of interest Act and AU’s own Board Conflict of Interest policy appear to require the President to recuse himself from this decision.

It is interesting to contrast the public positions of the government and AU’s President (presumably on behalf of the Board). The government has been unwavering in its view that AU needs to commitment to significant job gains in Athabasca. AU keeps pointing to its (inadequate) June 2022 plan and has layered on the idea that jobs can be brought to the region via the creation of some kind of ill-defined research centre.

I’m skeptical of the research centre idea. It won’t likely bring permanent residents to Athabasca (which is the underlying issue), but rather transient researchers. It may also bring no one because it is basically a “build it and they will come” proposition. In the end, no one will really be responsible and accountable for ensuring its success. This seems to be another version of stalling.

In the meantime, Athabasca-based staff are being told to clean out their offices as AU pushes its near-virtual (i.e., no one on campus) strategy. AU has also opened “hotelling” (drop-in) space in Athabasca, but in a room that the locals call “the dungeon”. The rest of the buildings are a ghost town, which raises the question of why the drop-in space isn’t in a nicer location.

Meanwhile, back on the ranch, some sleuthing has turned up that at least two members of the AU executive live in BC, one in Ontario, and one in the US. The rest appear to be located in the Edmonton and Calgary regions. This may, in part, explain the executive’s reluctance to acquiesce to the government’s demands (including that they move to town).

So where do we go from here? Here are four possible end games:

• AU acquiesces: The new Board could sign some version of the IMA and possibly direct the executive to abandon its near virtual plan (if that is in the IMA) and set hiring quotas or offering staff inducements to move. Whether the President and other executive would stick around for that, is an open question. Also, plummeting enrollments means AU’s hiring is likely to be curtailed (indeed, there is talk of layoffs) so meeting IMA quotes will be tough. Inducements are an option with additional government funding. 

• Government buys a pig in a poke: The government may decide AU’s “status quo plus research centre” plan is as good a resolution as it can get. That will cost the UCP votes and it sits uneasily with the government’s focus on rural issues. It would also be a personal defeat for the minister. 

• AU resists and government dithers: AU may continue to stall (hoping the UCP loses the next election) and the government may continue to let them (perhaps deciding the cost of an actual fight isn’t worth the eventual gain). Again, this would be a personal defeat for the minister, albeit a less visible one.

• AU resists and government acts: The government basically has two cards to play. First, it can cut off some or all of AU’s government funding (which is about 35% of revenue). AU could ride this out for a year based on its present reserves but, in the end, there would have to be layoffs to cope with the revenue hit. Layoffs would mean fewer jobs, which is not the government’s goal. 

The other option is the government can sack the Board and appoint an administrator. The administrator can then sack the president and the rest of the executive and order whatever policy the government wants. This is not an easy or automatic solution. But the government just sacked the Alberta Health Services Board so it obviously isn’t afraid of the political costs.

I don’t really see how the President of AU keeps his job in any of these scenarios. He has been the face of AU’s resistance. (Interestingly, his contract explicitly requires him to live in or near Edmonton and Calgary.) A departure, perhaps framed as going down fighting for institutional autonomy, is likely and may be his best option to exit. (That is certainly a better narrative for him than “I misread the politics and got outmaneuvered by a plucky and sly bunch of townies”).

Other executive departures are also likely. In addition to the whole jobs fight, there are two issues lurking just off stage that may set up a house cleaning. Staff were surveyed about their impressions of AU and its executive last month. The quantitative indicators have not been released yet and AU will likely not release the comments (under the guise of protecting privacy). But the comments that have been shared with me have been excoriating. The last question, for example, was “what is one thing AU’s exec could do to improve things?” Almost every answer I saw was some version of “Quit”. There is almost zero faith in the executive’s abilities or its intentions.

The second issue is the implementation of AU’s new Integrated Learning Environment (ILE). The ILE was the centre-piece of AU’s current “Imagine” strategic plan. The roll out has been delayed several times and is now going to a phased roll out (which staff are calling “death by a 1000 cuts”) because major operational issues have not yet been sorted and the current (overtaxed staff) will now be maintaining our existing systems as well as rolling out the new one, possibly for years.

The root problem here seems to be that the AU executive, in speccing out the system, did not listen when staff, who actually understand how AU runs, said (repeatedly) “uhhh, have you considered X?” Now that we’re knee-deep in launching the new system, all of those things staff flagged are suddenly cropping up as (surprise!) big, big problems. This is, ultimately, a management failure and warrants a house cleaning all on its own.

-- Bob Barnetson

Statutory law versus the collective agreement, a fun example

When we teach HR and LR students about the web of rules that regulate employment, we often focus our attention on the various sources of rules (e.g., common law, statutory law, contracts and collective agreements). This reflects that students need to (1) build a mental framework in order to understand how employment law operates and (2) develop some foundational knowledge of what the rules actually are (e.g., what are the basic rules around firing someone?).

One of the topics that gets glossed over in this sort of introduction is that, sometimes, what the law means (in practice) isn’t clear. Or, at least, an employer and worker/union might have a different interpretation of what the law required or permits. This can reflect legitimate differences of opinion, differing interests, and, sometimes, apparent conflict between rules from different sources of law. In the interests of time (and understanding that a survey course is just an introduction), we tend to wave this complexity aside with “disputes are remitted to an adjudicative body for resolution.”

Sometimes, it is worthwhile having a look at a case to see just how this adjudication works. As part of a research project, I came across an interesting arbitration decision from 2009 that is a fun read. The decision is:

Edmonton Space & Science Foundation v Civic Service Union 52, 2009 CanLII 90156 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (90156). CanLii is an excellent repository of Canadian law.

The basics facts are these:

• A worker was employed at the Edmonton Space and Science Centre and was a part of a union.
• The collective agreement permitted the employer to terminate a worker only when the employer had just cause. This is much more restrictive than the termination provisions set out in the Alberta Employment Standards Code (wherein workers can be sacked for no reason so long as notice is provided).
• The worker resigned, giving a month’s notice. The employer doubted how diligent she would be in performing her duties during the resignation notice period and purported to terminate her with one week’s notice under the Employment Standards Code.
• The worker grieved that the employer had no right to do so, given the collective agreement limited terminations to just-cause scenarios.

So, we have here basically a fight over whether the collective agreement trumps the Employment Standards Code or vice versa. After listening to the evidence and arguments of the parties (including refereeing a preliminary bun fight, where the employer wanted (among other things) to force the worker to narc out which member of the management team leaked that the worker was getting the sack), the arbitrator distilled the matter down into two questions (he listed three slightly different questions, but they are more granular than we care about):

1. Was the griever terminated without just cause by the employer?
2. Can the employer rely upon the Employment Standards Code to override its obligations under the collective agreement?

I won’t spoil the ending, except to say that (1) the employer’s argument was more inventive that I would have guessed (at the beginning of the decision, I laughed aloud at the employer’s position), and (2) the arbitrator does a good job of walking everyone through his thinking about how these two different sources of rights operate in this particular fact situation and how their seeming conflict can be resolved.

This decision is a good example of how employment-law sausage is actually made when the parties can’t agree and when there are multiple sources of rights that may conflict.

-- Bob Barnetson

Research: Grievance arbitration in Alberta project

I’m presently coding data for a research project examining grievance arbitrations in Alberta. There are some 1000+ arbitration decisions (2006 to present) to read and code before a colleague and I can start the actual analysis. We are presently about 20% of the way through the coding. While we can't tell whether our hypotheses are correct or not (we need a much larger dataset), we do have some initial descriptive data on the 2006-2008 decisions (n=203) to share, for what it is worth.

Sector

Not surprisingly, the majority of grievance arbitration decisions come from the public sector, with the public-service, health care, and education being the most common industries. In the private sector, manufacturing, retail (grocery mostly), construction, and forestry are the industries most frequently represented.



Gender

Most arbitrations are decided by men. Grievers are about equally split between men and women, but the most numerous kind of grievances (typically policy/group grievances) tend to have mixed-gender griever groups.



Type of grievance

The three most common types of decisions about grievances address termination/discipline (30.5%), salary and benefits (22.7%), and procedural wrangling ahead of the substantive issue (15.3%). Disentangling procedural decisions from more substantive ones poses some interesting coding challenges because of how they are inconsistently reported.

Outcomes overall

Overall, employers tend to “win” most grievances (in that they achieve the outcome that they wanted). The pattern (so far) is broadly consistent with the literature.



Looking just at termination/discipline outcomes (the largest category of grievance awards), we see a similar pattern. 



This is a bit surprising, because in most of these cases, the employer bears the initial onus to prove discipline/termination was warranted. This is different from most other grievances (where the union bears the initial onus). Early days though—we may see a shift as more decisions are coded.

--Bob Barnetson