UCP's record on labour issues

 

Alberta Views recent published an article I wrote about the UCP's record on labour issues. The article reprises and extends a chapter I wrote with Susan Cake and Jason Foster in a new book entitled Anger and Angst: Jason Kenney's Legacy and Alberta's Right (which is also worth a look).

The nub is basically that UCP labour policy can be best understood as an effort to shift the cost of labour from employers to workers by grinding wages and working conditions. The effect, particularly on and in Alberta's public-sector has been significant. Since the Alberta View's article is open access, I'll leave it for you to read more if you like.

-- Bob Barnetson

Notice of termination vs severance

One of the challenges of teaching students about interpreting collective agreements is the effect of clauses is often very hard to know because they can interact with other clauses in the collective agreement as well as other regimes of employment law. As part of a research project, I came across a 2011 decision that is a fun read about termination notice and severance pay.

The decision is:

Canadian Energy Workers Association v ATCO I-Tek Business Services Ltd, 2011 CanLII 81659 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (81659). CanLii is an excellent repository of Canadian law.

The basic facts are these:

• The employer was outsourcing a significant number of positions and this resulted in significant number of terminations.
• The collective agreement gave the affected workers rights to (1) working notice (or pay in lieu of notice) under Article 30 and (2) severance under Article 32 and a Letter of Agreement.
• The union argued that the permanent workers were entitled to benefit from both sets of rights; the employer argued that workers were only entitled to severance.
• (There was a second issue around a worker signing a release that isn’t really all that interesting.)

The union’s argument was (loosely, I’m paraphrasing in the interest of space) notice is designed to give workers a chance to find alternative employment while severance is compensation for their investment in their workplace that is lost upon termination. Essentially, these two are complementary, rather than alternative, entitlements.

The employer’s argument (again, loosely) was that the entitlements are mutually exclusive and applicable in different circumstances and this the benefits do not compound. Reading the provisions as complementary creates an excessive benefit for the workers.

I won’t spoil the ending for you. The panel’s decision flows from an interesting exploration of the purpose of each of the rights in the contract, the language used, and the effect they have for different employee groups. This decision is a relatively simple example of this kind of inquiry, that occurs in many contract interpretation grievances.

The ultimate decision (that I found to be surprising) highlights how parties can negotiate provisions that each finds acceptable without mutually working through the actual operation of those provisions. This can reflect the nature of bargaining (where ambiguous language may be a strategy to, for example, defer a fight), the complexity of language (which can give rise to legitimately different interpretations), and the impact of practical constraints (e.g., bargaining is often done under the gun by very tired people who sometimes make errors of omission).

-- 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

Alberta Labour's 2021/22 Annual Report

At the end of June, the government of Alberta dropped the annual reports for all ministries for the year ending March 31, 2022. The Labour report provides a snap-shot of government enforcement of labour laws as well as a hint at some of the outcomes. What the report addresses (and what it omits) is interesting.

For example, last year, the annual report noted that the government was sitting on a report of the minimum wage commission (struck in 2019, reporting in early 2020), The expectation was that this report recommended expanding the existing two-tiered minimum wage and that the government would use this as a pretext for reimplementing a lower wage for some servers.

That report was never released (as far as I can tell). This year, there is literally no mention of the minimum wage. Perhaps the government has given up on the idea given the struggle faced by employers to recruit servers? This, in turn, suggests that the existing minimum wage (stagnant since 2018) may be inadequate.

Or maybe, with three Labour ministers in a year, each worse than the last, the department just lost track of this issue? Anyhow, let's have a look at the various regulatory areas the government reports on.

Employment Standards

Employment standards set out the minimum terms and conditions of work. If your employer screws you, you can file a complaint. Over time, complaint numbers have dropped significantly.



There is, once again, no concrete explanation for this drop. Many things can affect complaint volume, including the number of workers and their expectation that complaining will be beneficial (e.g., result in a net gain, not result in retaliation). A 41.9% reduction in complaints since 2016/17 is pretty significant, especially since employment numbers rebounded during 2021/22.

Overall inquiries by Albertans about Employment Standards are also down. There were 131,189 phone and email inquiries in 2019/20 and only 70,826 in 20221/22 (a 46.0% reduction). Again, no compelling explanation for this change is offered. One possibility is that Alberta workers are decreasingly seeing Employment Standards as a viable way to enforce their rights. The drop since the UCP came to power is particularly striking.

There was an increase in Employment Standards enforcement this year. Instead of one administrative penalty, Alberta issued three penalties, the largest being $1500. The lack of consequences for noncompliance (beyond maybe having to pay some or all of what an employer should have paid in the first place) not only makes Alberta’s Employment Standards laws pretty toothless, but, in fact, economically incentivizes employers to cheat workers because they will likely get away with it.

Occupational Health and Safety

Alberta’s OHS system is designed to reduce workplace injuries and fatalities by educating employers and workers about safe work practices, conducting inspections to ensure compliance, and issuing orders and penalties when employers fail to operate safely.



The bump in inspections in 2020/21 was due almost entirely to additional COVID-related inspections and numbers seem to have returned to historical numbers. Almost 12,000 inspections seems like a lot of inspections, but we need to consider the context.

There were about 155,000 employers registered with the WCB. That undercounts total employers but whatever—this is back of napkin work. If we use 155,000 as a rough proxy for total employers and there were 11,798 inspections, we’re (roughly speaking), looking at a workplace being inspected once every 13 years.

If you did something more fine-grained (e.g., bigger employer pool; controlled for employers getting inspected more than once in a year), that telescopes the inspection cycle out some (maybe once per 15 years, maybe longer). The point, though, is that most worksites will effectively never get inspected.

If workplaces do get inspected, what happens? Mostly likely, if there are violations found, employers just get ordered to remedy them. But the number of compliance orders has dropped by about half since 2018/19 (the last full year of the ND government).



OHS almost never uses the enforcement tools available to it. OHS tickets dropped from 479 tickets in 2018/19 (again, the last year of the NDP government) to 32 this past year (a 93.4% drop). Of the 32 tickets issued in 2021/22, nine went to employers while the rest went to supervisors or workers. The largest ticket to an employer was $575 while the largest ticket to a worker was $230. These values have not changed in recent memory

Interestingly, the number and value of administrative penalties went up significantly this year, especially in dollar value. I don’t know what explains this. Only 11 charges were laid under the OHS Act, compared to 17 the previous year. Fines from prosecutions remained steady at $1.9m, with $1.2m being paid in the form of creative sentences (e.g., donations to community groups).

Effectiveness of Injury Prevention

So is this approach to injury prevention effective? One way to measure prevention effectiveness is to look at injury outcomes (particularly injury rates per 100 person-years worked) over time. Using a rate controls for fluctuations in the population over time and allow us to see patterns.

Alberta uses two main injury rates: lost-time claims and disabling injuries.

• Lost-time claims are accepted are injuries that required time off work beyond the date of injury. These are usually the most serious kinds of injuries. 
• Disabling injuries are accepted injury claims that required time off or modified work duties. 

Both rates are subject to under-reporting issues (i.e., employers pressure workers not to report). Both rates have climbed over time. While, yes, correlation is not causation, rising injury rates is highly suggestive that Alberta’s approach to injury-prevention (particularly declining consequences for operating unsafe workplaces) is not effective.



The government notes that COVID played a significant role in rising disabling injury rates, If COVID-related claims are excluded, the DI rate would be 2.32 in 2020/21 and 2.46 in 2021/22.

Labour Relations

The Alberta Labour Relations Board (ALRB) administers and adjudicates applications and complaints about labour relations. The most interesting datapoint in the annual report is the number of certification applications (i.e., when a union applies to represent a group of workers).

In 2017, the ND government made it easier for workers to unionize by allowing card-check certification. Like every other jurisdiction where this change has been implemented, unionizing efforts increased significantly (because employers are deprived of the opportunity to meddle in the workers’ choice). In 2019, the UCP removed card check and, not surprisingly, certification dropped significantly. There are some confounding factors here (lag effects, COVID in 2020 and rising interest in unions in 2021) that we can’t control for, but that pattern is plain enough.



There are also a couple of interesting things tucked away in the details. There has been a dramatic increase in the number of days it takes for an application to get to hearing. This matters because delay usually benefits one side (almost always the employer).

The Board also continues to lag in rendering a decision in a timely manner. Again, delay tends to benefit employers.



This is partly explained as a function of writing time lost to additional administrative demands related to virtual hearings.

Conclusion

Overall, the administrative performance of Alberta’s labour law regime has declined over time, particularly since the UCP took office. Particularly worrying is the increase in injuries and the decline in certification applications. The underlying issue likely reflects policy directions and/or funding reductions enacted by the UCP.

-- Bob Barnetson

Alberta Labour 2020/21 Annual Report

Alberta Labour released its annual report for 2020/21. As usual, there are a number of interesting tidbits to be found in amongst the spin doctoring. For example, the report (p.18) identifies that the Minimum Wage panel (struck in 2019) to examine the impact of minimum wage changes (and likely to support reducing the minimum wage for servers) reported (I’m told in the spring of 2020) and the government is sitting in the report.

Given the difficulty that many minimum-wage employers are having recruiting staff, it will be interesting to see if the government goes ahead with re-introducing this two-tier wage structure and, if it does, whether employees will be able to take advantage of it and grind server wages.

There was some interesting analysis this year that higher youth wages do not appear associated with job losses among youth (which was the pretext for introduce a lower youth wage in 2019). There is also some suggestion that lower youth wages have not resulted in improvements in youth unemployment. In June, youth (age 15-24) unemployment was 18.1% in Alberta, basically double overall unemployment (9.3%).

The emphasis on helping unemployed Albertans return to work (either via additional training or labour market services) is notable and reflects the 6.6% drop in employment in 2020. The government also reduced by about a third the number of spots available to migrant workers who wish to become permanent citizens to, in part, “enable more job opportunities for unemployed Albertans” (p. 36). Interestingly, the department continued to make efforts to increase labour mobility within Canada by lowering the already low barriers to having certifications from other provinces recognized (pp.37,39).

Employment Standards

The number of Employment Standards complaints dropped by about 35% between 2018/19 and 20201/21. This likely triggered drops in other ES metrics (some of which are positive). There is no analysis of why complaints dropped or which kinds of complaints declined. Potential explanations include fewer Albertans working and fewer Albertans willing to complain given the high level of unemployment.

There is no data provided on what percentage of complaints were found to be valid or how much unpaid wages were recovered (or not recovered). The number of human trafficking investigations jumped from 59 to 95 (no data on outcomes) and single administrative penalty was issues to an employer who derived economic benefits from non-compliance. The report pumps this up as the biggest fine ever issues. What is ignored is that pretty much all valid ES complaints involve the employer enjoying an economic benefit. So a single employer being penalized is not really a huge success.

Occupational Health and Safety

The number of OHS inspections was way up last year, likely reflecting the demands of COVID. The number of orders written was, however, way down. The explanation offered is a bit hard to parse but I think it says that basically OHS only lowered the boom when there was repeated noncompliance. What this tells employers is that they basically get a free pass on their first offence (unless someone gets injured or killed), which does not really incentivize voluntary, pro-active compliance by employers.

There were 55 tickets issues in 2020/21 (mostly to workers). Once again, the report omits important context which is that, under the UCP, ticketing has dropped off to essentially nothing. In 2018/19, there were 479 tickets issues. This dropped to 22 tickets in 2019/20 and remains low in 2020/21.

There were also 18 administrative penalties issued to employers, totalling $62,500. This number is up over last year (14) but I can’t find the data to track the dollar value. Seventeen charges were laid this year against employers (about the same as last year). Fines as a result of convictions dropped from $5.2m to $1.9m because, you guessed it, the number of charges in previous years dropped.

Injury Stats

While injury rates an not very good measures of injury due to massive under-reporting, they do offer year-over-year a measure. There was a significant jump (8%) in lost-time claims and is at the highest level since 2011. COVID explains part of the jump this year, but it is notable that there has been a long-term trend (since 2016) upwards. This suggests that Alberta injury prevention efforts are not working. Accepted fatalities sat at 130, which is about the same as last two years.

Labour Relations

The number of certification applications in 2020/21 was way down (51%). This is likely the result of the reintroduction of mandatory votes (which makes certification drives riskier for unions) and COVID. On the upside, the Labor Board finally began allowing electronic filing (dumping their outdated paper/fax-only system).

-- Bob Barnetson

No evidence paid sick leaves kills jobs

Canada and the US are outliers in historically having no statutory paid sick leave. Alberta’s opposition party has proposed 10 days of leave as a pandemic response measure. This logic of this proposal is basically that paid sick leave would help some sick workers decide to stay home by providing security of employment, income, and benefits. Yesterday, Alberta’s premier called paid sick leave a “job killing” proposal.

A 2010 report by the World Health Organization (in the wake of H1N1) suggests that paid sick leave has benefits that far outweigh its costs in Europe. The benefits include:

• Access promptly medical care and the opportunity to follow treatment recommendations 
• Recuperate more quickly 
• Reduce the health impact on day-to-day functioning 
• Prevent more series illnesses from developing 
• Reduce the spreading of diseases to the workplace and community (p.6).

The costs of paid sick leave are mooted to be greater costs (for the state or employers, depending upon the arrangement), loss of productivity, and the potential for abuse by workers (i.e., taking sick days when not sick).

The WHO report suggests European costs are relatively low (averaging just under 200 Euros per year per capita), and paid sick leave is associated with greater productivity.

A US study examined the effect of sick leave mandates in several US cities and states on the number of private sector jobs. These proposals see workers accrue sick leave over time (kind of like; vacation entitlements). The upshot is that there appears to be effectively no impact on jobs numbers (i.e., sick is not a job-killing policy).

A separate study focused on New York’s employer paid sick leave mandate (which extended sick leave to millions of employees) also suggests paid sick leave is no big deal. 

• Most employers experienced no cost increases and those who did (14%), the majority reports <3% change. 
• More than 91% of employers reported no reduction in hiring
• 97% of employers indicated that they did not reduce hours 
• 98% of employers reported virtually no abuse of sick leave and percentage of no-abuse reported was higher for small businesses. 
• 96% reported either no decline or an increase in productivity.

Basically, modest statutory sick leave provisions are a significant public health boon and can be implemented at virtually no cost. There is no credible evidence I could find in a quick search that paid sick days are “job killing”.

Not providing sick leave, by contrast, is likely to increase in the spread of COVID (as workers come to work sick for fear of losing their jobs or not being able to pay their bills). In this way, Premier Kenney’s unwillingness to consider paid sick leave is a “worker killing” policy.

-- Bob Barnetson

The paradox of small business

I'm not much for podcasts but the Alberta Advantage podcast (basically lefty political economy analysis out of Calgary) is often worth a listen. This episode provides an interesting analysis of the role of small business in society. 

Specifically, the episode examine the valourization of small business and how that is used to run cover for capitalists. For example, when big business advocates for lower wages, they get pilloried as greedy. When small business advocates for lower wages, the conversation is almost always framed around helping "job creators" in the local community stay afloat.

The episode also interrogates the actual track record of small businesses with regard to workplace safety and wage theft (spoiler: lousy, often made worse by the precarious employment that they offer). And it explores how the media flips the narrative on things like wage theft by bosses to time theft by workers in order to obscure how shitty some employers are.

Finally, the episode (like most of their episodes) spends a few minutes calling out the provincial NDP for their opportunist boosterism around small business, generally to the detriment of the interests of workers.

-- Bob Barnetson

New study on farm safety views in Alberta

A new study about safety on Alberta farms is now available. “Occupational health and safety on family farms in Alberta” was funded by the now defunct OHS Futures Grant from government. The study comprises 37 interviews with far operators, family members, employees, industry and worker groups and regulators in 2018/19 (so under the NDP’s now mostly defunct Bill 6 rules). At present, the majority of non-family employee son farms are excluded from statutory OHS, employment standards or labour relations rights.

The findings include:

• There is an awareness that unsafe work is unacceptable among operators,
• Workers and farm operators have different views about the level of safety on farms.
• Fatigue is a key risk factor.
• Power imbalances in the employment relationship appear to negatively affect the safety of non-family employees. This often goes unrecognized by industry and safety professionals.
• There was general agreement that some OHS and injury-insurance requirements are necessary; employers were less supportive of rules hours of work despite the safety risk of fatigue.

Overall, this research jives with the broader body of research on farm safety. Of particular note is the impact that pressure (time, finances) have on the decision about working safely and the normalization of unsafe work (by farm operators) as just a part of the job.

This research also highlights how workers and employers see safety differently, even though they may share some of the same risks in the workplace. The impact of a lack of childcare options on the safety of children on the farm was also insightful.

Of interest on the insurance side was the devaluing of the no fault nature of WCB (i.e., the tort bar) because few operators thought they would be sued over an injury. Overall, the study highlighted that there was significantly more nuance to operator views about farm worker rights and regulations than one might thing from the reaction to Bill 6 back in 2015/16.

-- Bob Barnetson

Massive drop in Alberta OHS ticketing

Alberta Labour and Immigration’s annual report for 2019/2020 is now available online. Here are the highlights of the employment standards and occupational health and safety sections. The most interesting item is the 96% drop in OHS tickets issues in the past year.

Employment Standards

The number of employment standards complaints was pretty static but there were significant improvements in complaint processing times. That said, it still takes an average of 45 days for a complaint investigation to begin, which isn’t great if your employer just scooped your wages or fired you without notice or pay in lieu.

Interestingly, the number of anonymous tips jumped a lot (about 10% of these tips were investigated). There was also a significant percentage jump in workplace inspections. That said, the overall percentage of workplaces inspected remains very, very low.

Occupational Health and Safety

Workplace inspections were down about 20% this past year. Fewer inspections is attributed to pulling staff from frontline duties to train new OHS officers (really?) and a new system whereby employers can pinky swear that they fixed problems and avoid a re-inspection (eye roll). Orders written and unique worksites visited were also down. 



In terms of enforcement, 22 tickets were issued in 2019/20 (15 of which went to employers). Although the report doesn't mention it, this was down from 479 tickets in 2018/19. Hmmmm. This 96% drop in tickets cries out for explanation. At a guess, I’d say inspectors were told to stop issuing tickets because ticketing is up for review in 2020/21. Issuing virtually no tickets creates ”evidence” that this form of penalty is unnecessary and thus can be done away with as “red tape”.

Five administrative penalties were also issued to employers. Again, not mentioned is that this was down from 14 in 2018/19. Complaints of discrimination for exercising OHS rights were up this year (90 versus last year). Five of these were upheld, 23 were dismissed, and 62 remain under investigation. OHS charges were up, however, from 16 to 18 this year. This is a very low number given the number of injuries and fatalities.

While injury rates are not very good measures of injury due to massive under reporting, they do offer a year-over-year measure. Overall, both lost-time and disabling injury rates were stable in 2019 but were higher than they were in 2015. There were 129 fatalities accepted by the WCB in 2019—about the same as the year before.

-- Bob Barnetson

Bill 32 reduces workers' overtime choice and pay

This blog previous appeared on the Canadian Law of Work Forum.

Alberta is proposing changes to its Employment Standard Code that would permit employers to evade paying overtime (OT) premiums to workers by stripping workers of their right to refuse to participate in overtime averaging agreements. This has the potential to move hundreds of millions of dollars in OT pay from workers’ pockets to employers’ profits.

Background

Like all Canadian jurisdictions, Alberta has set limits on hours of work. In most cases, Alberta restricts work to a 12-hour window (ESC, s.16(1)). Alberta also normally requires that employers pay an overtime premium (1.5 times wage rate) if workers work for more than 8 hours in a day or 44 hour in a week (ESC, s.21). The policy rationale for limiting hours of work and requiring OT premiums centre on ensuring workers’ quality of life, reducing the safety risks associated with worker fatigue, and incentivizing additional hiring.

Alberta also allows employers and workers to enter into overtime averaging agreement (ESA, s.23.1(1)). Averaging agreements allow an employer to average the hours worked by a worker over a period of time when calculating whether the worker has met the weekly OT threshold and is entitled to the OT wage premium. Presently, overtime agreements can specify averaging over a period ranging from one to twelve weeks. Averaging agreements allow for workers and employers to agree to compressed work weeks (e.g., four ten-hour days instead of five eight-hour days) without triggering the OT premiums.

Any overtime paid out at the end of the averaging period is paid at a rate of 1.5 times normal wages. Although the legislation is slightly unclear on this, government policy asserts that time off taken in lieu of OT is paid at straight time. Here is the government’s existing summary of the average agreement device.

Proposed OT Changes in Bill 32

Bill 32 (Restoring Balance in Alberta’s Workplaces Act) was introduced in the legislature in early July. If passed, this bill will make a large number of changes to both the Employment Standards Code and the Labour Relations Code. Relevant to this post, Bill 32 will allow employers to impose OT averaging agreements on workers with two weeks notice (Bill 32, s.1(11)) unless there is a collective agreement in effect. Presently, workers must agree to overtime averaging.

Bill 32 will also increase the period of time over which OT can be averaged from 12 weeks to 52 weeks and do away with the two-year limit to such agreement and loosen the rules around changes in work schedules (which otherwise require 24-hours of notice).

These changes provide employers with oppportunities to evade paying OT premiums. For example, the weekly overtime threshold is 44 hours. If a worker works a 60-hour week (say six 10-hour days), they would normally be eligible for 16 hours of pay at over-time rates. Under an overtime averaging agreement, those 16 hours could be averaged (i.e., spread across) up to 52 weeks (roughly 20 minutes per week). This would spread the OT far enough not to engage the 44-hour weekly OT threshold (the daily OT threshold can be evaded under averaging agreement).

Under such an agreement, a worker could work up to 208 OT hours a year (i.e., more than five extra weeks) and the employer would never have to pay any OT premiums. The changes effectively guarantee that very few, if any, non-union Alberta workers will ever receive overtime pay, unless the employer agrees to pay it as an act of altruism or a job perk. Further, when a worker is entitled to be paid OT under an averaging agreement, that pay may be delayed until the end of the averaging period (now as long as 52 weeks).

Bill 32 also compounds 2019 changes to how banked OT is paid out. Under those changes, a worker who enters into an OT banking arrangement (which is notionally voluntary, but practically up to the employer) and wishes to take banked time as time off with pay (instead of being paid out), does so at straight time.

Analysis

The amendments proposed in Bill 32 will enhance employers’ opportunities to avoid paying OT premiums. When the government makes it easier for to require over-time work without paying workers the over-time premium (as it is with Bill 32), the government is effectively transferring money from workers’ pockets to employers’ profits. Statistics Canada data from 2018suggests that there is roughly $3.3 billion in over-time premiums annually.

Rationally, every employer should enter into an OT averaging agreement. Not every employer will be able to do so. Unionized employers will remain subject to whatever their collective agreement says (this covers about 20% of the workforce in Alberta). Other employer may not be sophisticated enough to operate an agreement. There is no credible way to estimate the value of the transfer from workers to employers, but the annual amount is likely to be in the hundreds of millions of dollars.

Minister Copping framed these changes as “expanding choice for workers”in a Calgary Herald op-ed, noting:

…some workers may prefer to work four 10-hour days, instead of five eight-hour days. Then, they could receive three-day weekends. But changes made by the previous NDP government effectively made it difficult for employers to set up these schedules… .

This is the precise spin that conservative governments across the country have used to justify legal rules that permit employers to avoid overtime pay. In this framing, Copping fails to note that (1) under the present system, workers (as a group) have the opportunity to choose (or refuse) flexible schedule, and (2) Bill 32 takes away that choice by vesting decision-making with the employer. He also ignores that employers can manipulate this system to evade paying overtime premiums and that that long shifts increase the risk of injury to workers.

-- Bob Barnetson

OHS inspections show high levels of noncompliance

A few years back, some colleagues and I surveyed 2000 Alberta workers about injury and safety. One of our findings was that only about half of employers complied with basic OHS requirements, such as performing a hazard assessment.

A hazard assessment is a written document that identifies hazards in the workplace and how the employer intends to control those hazards. It is required by law. It is important because employers can only control those hazard that they identify.

The study found only 50% of employers had a hazard assessment. This is a pretty shocking level of non-compliance. Not surprisingly, there was some eye rolling and quiet suggestions that we were out to lunch. The politest criticism was that “how would workers know if there was a hazard assessment?”

Questioning the validity of studies is part of a well-known set of employer strategies to delay dealing with OHS issues. It comes after denying there is an issue and before employers buy their own study to show there is no problem.

So, a couple of years go by and then I ran across this graphic in the August 2020 issue of Alberta’s OHS e-news.

The crux of it is that OHS inspections of new employers during 2018-19 found pretty high levels of non-compliance around hazard assessments (50-59% in the four worst-offender industries). It is important to note that these findings were for new employers in industries where OHS visited 10+ times and these were the worst-performing industries. This means we shouldn’t carelessly generalize from these findings to every employer.

That said, I have three thoughts. First, these findings provide some support for our 2016 findings of 50% noncompliance with hazard assessments. Since these findings reflect inspections (where employers either were or weren’t able to produce a hazard assessment), one can’t argue them away as simply worker (mis)perceptions.

Second, that these inspection results generated similar results to worker surveys, suggests that worker surveys may actually generate valid and reliable data about employer practices. That is to say, workers do actually know what is going on in the workplace in terms of safety.

Third, the worst industries for not having met the most basic OHS requirement—beauty parlours and school, restaurants and catering, food and convenience stores, and hotels—are many of the same industries that will benefit from Alberta looseningits child labour laws.

Specifically, Alberta is loosening the rules for 13- and 14-year-olds to allow them to do more restaurant work and light janitorial work. (The exact details on this as still sketchy, but 13-year-old janitors sounds pretty dumb no matter what the details.) So, basically, the UCP is sending vulnerable kids into workplaces that we have good evidence to indicate they don’t abide by OHS rules.

-- Bob Barnetson

Alberta's labour law response to COVID-19

This post was previously published on the Canadian Law of Work Forum.

Alberta has enacted several temporary changes to its Employment Standards in response to COVID-19, including expanding unpaid leaves and making it easier for employers to alter working conditions and lay off workers. Alberta’s Workers’ Compensation Board has also established some preliminary guidance regarding the compensability of injuries and illnesses caused by COVID-19. Alberta has also delayed and partly waived workers’ compensation premiums for employers.

Employment Standards

On March 5, the COVID-19 Leave Regulation came into effect, which provided 14 days of unpaid leave if a worker was under quarantine for COVID-19. There was no requirement for a medical note or for 90 days of service to access this leave, conditions which are standard requirements to access Alberta’s 2017 provisions for unpaid job-protected leave under s.53.97 of the Employment Standards Code.

The COVID-19 Regulation also waived the one-week notice of return requirement. Workers remained entitled to the 16 weeks of unpaid leave for illness, injury or quarantine, under s.53.97 of the Code with the usual service and medical note restrictions.

On April 5, 2020, additional and temporary changes to Employment Standards were enacted. These changes were authorized by a Ministerial Orders and included an unpaid, job-protected leave for employees who must care for children, either due to school or daycare closures or illness or self-isolation of family members. No service or medical note is required.

The government also waived employers’ obligations to:

• Provide 24 hours of written notice of shift changes.
• Provide two weeks of notice to changes of work schedules for those under overtime averaging agreements.
• Provide workers and unions with 8 to 16 weeks of notice of terminations of 50 or more employees (individual notice or pay in lieu entitlements remain unchanged).

Employers may now also:

• Temporarily lay off employees for up to 120 days (instead of up to 60 days), retroactive to March 17 if the lay off was related to COVID-19.
• More easily seek variances of and exceptions to other employment standards (related to COVID-19) from the government.

In effect, these changes allow employers to more easily and quickly alter working conditions and layoff employees.

Workers’ Compensation
Alberta’s Workers’ Compensation Board (WCB) issued some preliminary advice about the compensability of injuries caused by COVID-19. The crux seems to be that the WCB has determined that most instances of COVID-19 are not work-related.

The WCB’s Policy 03-01, Application 3 (Occupational; Diseases) addresses the question of work-relatedness of infectious diseases by applying a three-part test, Infectious diseases are eligible for compensation if:

(a) The nature of employment involves sufficient exposure to the source of inflection, and

(b) The nature of employment is shown to be the cause of the condition, or

(c) The nature of employment creates an increased risk of exposure for the worker.

Although there are several ways to interpret this test, the most likely interpretation appears to that a claim must meet (a) and then either of (b) or (c). In its March 26 guidance to employers, the WCB asserted that each claim is judged upon its merits but then opined:

A claim is likely to be accepted if a worker contracts the illness and is performing what the province deems to be an “essential service” that puts them in regular contact with the general public. A worker will also likely be covered in the event of a widespread outbreak at their place of work.

Alberta’s list of essential services is extensive. This likely extends the scope of accepted claims beyond the WCB’s March 9 position that accepted claims would likely be mostly restricted to health-care workers. The potentially large number of COVID-19 claims, particularly high-cost claims associated with fatalities, may place some pressure on Alberta’s Accident Fund going forward.

Alberta has also deferred 2020 WCB premiums until 2021. And private-sector employers with $10 million or less in insurable earnings will have 50% of the 2020 WCB premiums waived. This waiver is estimated to cost $350 million and will be paid by the government (not taken from the surplus of the WCB’s Accident Fund).

-- Bob Barnetson

Judge strikes down a portion of Canada's sex work laws

In December, AU opened a new course (LBST 415: Sex work and sex workers). One focus of the course is how governments regulate sex work and sex workers, with an eye to which approach yields the best results for sex workers.

In 2014, Canada amended the Criminal Code to decriminalize the sale of sexual services (in most instances). The purchase of sexual services and any acts designed to facilitate the sale of sexual services remain criminalized. 

This approach is often called the Nordic model and is intended to extinguish demand for sex work (although it has not) while making it safer for sex workers to seek police assistance (which it also has not). The law was supposed to have been reviewed by the government in 2019, but it was not.

An interesting development last month was that an Ontario judge struck down portions of Canada’s law on sex work that criminalized procuring, advertising, or materially benefitted from the sale of someone’s sexual services. The case involved a couple who ran an escort agency.

The judge’s rationale was prohibiting advertising violates freedom of expression while the laws against procuring and materially benefitting violate the Charter guarantee of security of person. The crux of the rationale is that the prohibitions make it difficult for sex workers to screen clients, work cooperatively, and to purchase certain services, all of which make sex work safer.

Those opposed to the decision frame this ruling as protecting pimps who traffic in exploited women and girls. While rhetorically powerful, this analysis ignores that there is significant nuance in the “management services” that sex workers may purchase as well as that human trafficking remains illegal.

This line of critique also contributes to the conflation of sex work and human trafficking. While there is overlap (some trafficked women and girls are involved in sex work, and some of this involvement in sex work is against their will), most sex work appears to be consensual activity.

That is not to say there isn’t an element of exploitation involved in sex work. But it is important to identify that sex workers have agency. A part of recognizing this agency is providing sex workers the opportunity to engage in sex work in ways of their choosing. Analysis of New Zealand (where sex work has been legalized) suggests this model yields the best outcomes for sex workers.

-- Bob Barnetson

Some budget and policy priorities for Alberta Labour in 2020

The Kenney government will be tabling Alberta’s 2020 budget on February 27. Some labour-side activists got together earlier this year to identify five some budgetary and policy initiatives that should (but likely won’t) be in the 2020 budget. These changes would improve the lives of working Albertans.

This ideas include indexing the minimum wage, budgeting for inflationary increases to public-sector salaries, preventing employers from evading overtime pay through “overtime banking” arrangements, better enforcing laws designed to prevent workplace injuries, and implementing paid short-term sick leave.

The minimum wage

In 2015, Alberta’s minimum wage rose from $10.20/hr. to $15.00/hr., representing a 47% increase. Prior to the 2018 increase, approximately 254,000 Albertans (13.3% of the workforce) earned less than $15/hr. Of these workers, 75% were at least 20-years-old, 63% were women, 37% were parents, 53% worked full time, and 75% had permanent jobs.

The three-year, 47% increase in the minimum wage moved Alberta from having one of the lowest minimum wages to the highest among provinces. The 2018 increase was the last announced increase in the minimum wage. Inflation is now eroding the purchasing power of minimum-wage workers. Further, the minimum wage for workers under 18 enrolled in school was lowered to $13 per hour in 2019.

Indexing the minimum wage to inflation would ensure minimum-wage workers can continue to afford to provide for themselves and their families. Prior to the 2015 election of the NDP government, Alberta indexed the minimum wage to the average of annual increases of the Average Weekly Earnings and the Consumer Price Index (CPI). Mirroring the annual increase in the CPI provides a simple and consistent method by which to adjust the minimum wage.

Public-sector wages

Alberta spends approximately $26.9 billion on public-sector wages annually. Almost all public servants have seen their wages frozen since 2017. Given the erosive effect of inflation, this means that the real-dollar income (i.e., purchasing power) of most public servants has declined by approximately 3.5%. Alberta’s government achieved freezes in most public-sector agreements in 2019/20. The combined impact of 2019 inflation and a rollback would be to reduce real-dollar income for public-servants by between 5 and 8%.

Reducing the real-dollar income of public servants means that these workers are effectively subsidizing the cost of public services through diminished income. This is unfair because public-sector workers already pay taxes. Declining public-sector wages reducing consumer spending and make it difficult to recruit and retain public-sector workers. Alberta’s experience with nursing shortages after the wage freezes and funding cuts of the 1990s is an example of this dynamic.

Budgetting for an inflationary increase to public-sector wages would stabilize public-sector incomes. If inflation is approximately 2.0%, indexing public-sector wages would cost approximately $540 million in 2020.

Overtime pay

Alberta’s Employment Standards Code requires employers to pay workers an overtime (OT) premium when they work beyond 8 hours in a day or 44 hours in a month. This overtime premium is 1.5 times their normal wage rate (e.g., a worker earning $15 per hour would be entitled to pay of $23.50 per hour for every hour of over time).

Allowing employers to require work beyond a normal work week creates operational flexibility. Requiring employers to increase workers’ wages by 50% when overtime is required is intended to incentivize employers to hire more workers, rather than over-working their existing workforce.

Alberta requires OT to be paid out unless the employer and worker have entered into an overtime banking agreement. A banking agreement allows workers to defer overtime pay and take it in subsequent pay periods as time off. Banking arrangements are common in industries where work is seasonal or unpredictable, with workers drawing down banked overtime when work slows down. While employees theoretically enter into OT banking arrangements voluntarily, in practice, employers can use their greater power in the workplace to impose such agreements.

In June of 2019, Alberta amended its overtime rules. This amendment meant that banked over time was banked at straight time. So, 10 hours of banked over time would be now paid out as 10 hours of paid time off, not as 15 hours as it was previously. This change allows employers to evade the overtime premium.

This change has significant financial implications. In 2018, approximately 413,200 Albertans worked an average of 10 hours per week in OT at an average wage of $30.76 per hour. With OT factored in, these hours yielded each worker an average of $461.40 in total pay. If employers implemented OT banking, they could save an average $153.80 per week per worker.

If employers implemented OT banking arrangements for every worker, this would transfer approximately $3.3 billion in OT premiums from workers to employers. This transfer may incentivize some employers (particularly in seasonal industries, such as upstream oil and gas) to minimize additional hiring. It also significantly reduces the income that workers have available to support their families and spend in the economy.

Occupational health and safety

Alberta’s Occupational Health and Safety Act (along with it associated regulation and Code) requires employers to ensure workplaces are safe and healthy. Alberta employs approximately 140 Occupational Health and Safety (OHS) inspectors. These inspectors conducted 16,410 inspections (inspecting a total of 8,152 workplaces) in 2018/19. Inspectors wrote 16,680 OHS compliance orders while prosecutors laid 16 charges for OHS violations in 2018/19.

While the numbers of inspections and orders have trended upwards over time, only about 4% of Alberta employers will receive an OHS inspection this year. This means employers face little chance of being caught violating the law. The most common sanction if they are caught is an order to simply comply with the law.

Given this limited enforcement effort, it is not surprising that a recent study suggests only half of Alberta employers comply with even the most basic of OHS requirements (i.e., identifying hazards and control strategies). Additional funding would permit the Ministry to conduct additional compliance blitzes that target high-risk industries or employers with a history of non-compliance.

Non-compliance with OHS rules results in approximately 170,000 disabling injuries annually. Disabling injuries are injuries that mean a worker cannot go to work the next day or requires modified job duties. Overall, approximately 400,000 Albertans experience some sort of major or minor occupational injury or illness in each year (roughly 1 in 5 workers). Additional OHS inspectors and additional resources for prosecution will increase employer compliance. This should, in turn, reduce the level of occupational injury in Alberta. Adding 350 OHS inspectorS would cost roughly $70 million per year.

Paid sick leave

In 2018, Alberta granted all employees 5 days of job-protected leave to deal with personal and family responsibilities, such as illness. Alberta was one of the last Canadian jurisdictions to require employers to do so. While not losing a job if a worker (or a worker’s child) becomes sick is an important right, low-wage workers may not be able to afford to exercise their right to leave because it is unpaid leave.

For example, approximately 254,000 Albertans earn the minimum wage of $15 per hour. If these workers work a 40-hour week, their gross annual incomes are $31,200. Few of these workers will have employer-paid sick leave. Taking five unpaid days of sick leave means forgoing $600 in gross income. Losing out on 25% of one month’s salary may not be financially possible for low-wage workers. Consequently, they may come to work sick or send their children to school while sick to avoid this wage loss, thereby potentially infecting others and increasing the cost of illness.

Converting Alberta’s current job protected leave to deal with personal and family responsibilities from unpaid to paid leave will make this right more accessible to Albertans employed in low-wage jobs.

-- Bob Barnetson