This report examines how, in a time when workers’ Charter-protected associational rights appear to be expanding, the rate at which governments interfere with collective bargaining has skyrocketed.
It specifically looks at Alberta’s ongoing use of secret bargaining mandates, which turn public-sector bargaining into a hollow and fettered process.
This report is relevant because both UNA and AUPE have exchanged opening proposals with the government in the last few weeks and will be bargaining against secret mandates. The government opener in both cases was, unsurprisingly, identical and there is a huge gap between what workers are asking for and what the government is offering.
A week ago, a coalition of groups released a report addressing shortcomings in Canada’s existing Caregiver Program. This program brings foreign nationals to Canada to work on a temporary basis providing care for children, the elderly and persons with disabilities. After 24 months of work, the caregivers can then apply for permanent residency.
The existing Caregiver program is set to expire in November of 2019. The coalition identifies a number of issues with the current program:
It defines caregiving as a temporary labour market need when, in fact, there is an ongoing need for caregivers (as witnessed by the ~5000 new caregivers who come to Canada each year).
The program requirements separates caregivers from their own families, often for years.
The structure of the program makes it almost impossible for caregivers to leave bad jobs, such as where there is economic exploitation or abuse.
The pathway to permanent residency contains a hard cap on the number of caregivers who may become permanent residents (which is the primary attraction of the program for workers) that is set at about half of the number of caregivers who are allowed into the country each year. Consequently, there is a huge backlog of applications.
Some of the requirements for permanent residency (language and education) are assessed only after caregivers have already been employed on a temporary work permit for two years. Other requirements (medical exam) are repeated.
The report also contains recommendations for actions and is well worth a read.
This week’s installment of Labour & Pop Culture revisits The Office to look at how employers handle drug use in the workplace. This skit is relevant given that, on October 17, cannabis consumption in Alberta (and elsewhere in Canada) will become legal (with some, still emerging, restrictions).
Impairment in workplaces Workers who are impaired on the job – whether by alcohol or drugs – are a danger to their coworkers and themselves. Alberta already has rules and programs in place to address impairment on the job and keep workers safe, but we are exploring options to better address all forms of impairment in the workplace, and will continue to work with employers, labour groups and workers to ensure the rules continue to address impairment issues. This may include developing additional regulations, education or training programs.
Employer efforts to randomly test workers for drug use and/or impairment have been a long-standing source of conflict in Alberta. For example, Suncor’s decision to randomly test workers has yielded an extensive amount of litigation since 2012 and the issue remains before an arbitration panel. An overview of this litigation can be found here.
Drug testing entails serious and competing interests. It is often framed as a contest between workers’ right to privacy and employers’ obligation to keep workplaces safe (although the evidence that random testing has any safety effect is basically zero).
The debate about drug testing is often tinged with an underlying moral judgment. It goes something like this: since drug use is illegal, workers who use drugs (on their own time) deserve to experience the workplace consequences associated with testing because they are criminals.
This dynamic is, in part, the premise of the joke in The Office skit above. The legalization of cannabis use undercuts this moralizing and it will be interesting to see how employers handle this change in the law.
Employers have an obligation to accommodate workers who are unwell or who have a temporary or permanent disability. This obligation is often operationalized in the form of short-term sick leave and modified job duties.
Unionized workplaces often have paid sick leave and contractual requirements to accommodate disabilities. Accessing these rights sometimes requires an employee provide a note from a physician or other health-care professional, stipulating the duration of an absence or the nature of an accommodation.
Employers have little legal right to look behind physician-mandated leave or accommodation. For example, they are not normally entitled to know the nature of the underlying medical condition. And they have limited ability to contest physician-determined medical requirements, such as by making an employee see a company-appointed doctor.
Athabasca University (AU) has recently proposed new and quite aggressive “company doctor” language in its collective agreement with the Athabasca University Faculty Association (AUFA). This language would give the employer to power to mandate non-therapeutic medical examinations by a physician appointed by the employer.
AU’s proposal reads:
16.5.9. a. The University may require that a Staff Member be examined by a physician appointed by the University.
i. in the case of prolonged or frequent absence because of illness or,
ii. where the University considers that a Staff Member is unable to satisfactorily perform the Staff Member’s duties due to disability or illness, or
iii. where there is an indication of misuse of illness leave.
b. Upon request of the Staff Member, a copy of the report of the examining physician shall be sent to the Staff Member’s physician.
c. Expenses incurred under this Clause shall be paid by the University.
Practically, what this means is that:
HR could require sick AUFA members to report to a company doctor for a medical examination.
Failure to do so could result in discipline (for insubordination) and possibly a suspension of paid sick-leave benefits or the denial of accommodation.
If AU’s doctor disagrees with the staff member’s doctor’s recommendations, AU would then be in a position to deny the staff member the sick leave or accommodation their doctor deems necessary or force the worker into a third examination to "break the tie".
Being forced to submit to an examination by a company-paid doctor is a profound intrusion into a worker's privacy.
AUFA has been able to identify 1 instance in the past 15 years where the university formally brought up the possibility of mis-use of medical leave. There may be other cases, but none the employer ever brought forward.
What this means is that this proposal does not solve a real and pressing problem facing AU. The current process of staff members providing medical notes from their own physicians or other health-care providers is adequate.
This proposal does increase AU’s ability to harass AUFA members with medical conditions by subjecting them to non-therapeutic medical examinations conducted by a company doctor.
Bluntly, AU is attempting to weaponize the sick-leave and accommodation provisions of the AUFA collective agreement against workers when they are most vulnerable.
The likely (and typically intended) effect of introducing company doctors is to limit workers’ use of their sick leave. Workers subject to AU's proposed provisions are less likely to exercise their rights for fear of being targeted for a visit to the company doctor.
The Alberta Human Rights Commission characterizes examinations by company doctors as follows:
Requiring an employee to submit to an [Independent Medical Examination] by a doctor of the employer's choosing is intrusive. Arbitrators and courts are reluctant to require an examination by someone who is not chosen, or at least agreed to, by the employee.
While AU’s bargaining team has conceded this proposal is “not a hill [it] wants to die on” it has refused to withdraw the language.
This kind of aggressive (and needless) proposal is deeply disrespectful to staff members' integrity (we don't fake being sick or malinger) and privacy.
And AU’s refusal to withdraw the proposal is contributing to a growing stalemate in negotiations during the parties’ first round of bargaining under strike-lockout.
One has to wonder what the employer’s strategy is here?
Over the past few years, the Alberta Labour History Institute has been collecting the stories of Indigenous workers in Alberta. A number of video interviews are now available online.
The most recent edited set of interviews looks at the role of Metis iron workers in building the CN Tower in Edmonton.
There is also a full transcript of the various interviews available that contains a fair bit more detail.
There are also numerous other interviews available.
At random, I listened to Linda Robinson’s very interesting interview about her experiences on the job as a person with a disability and her experiences with the labour movement.
The crux of the article is that the structural features of the SAWP mean that female workers have difficulty making choices about their bodies and sexuality. These structural factors include “…include precarious legal status, poverty, lack of access to primary care services, limited knowledge of the health care system, and workplace insecurity” (p. 92). Workers' sexuality is also subject to intense surveillance (by both their employers and the state), although this surveillance does not seem to prevent their sexual harassment.
The authors document numerous acts of resistance (e.g., rule breaking, speaking out, various forms of concerted action) as these workers assert their reproductive rights. That said, it is striking how these women’s ability to control their bodies is constrained in a country that, at least theoretically, upholds women’s right to make free choices about sexuality and health care.
Among the strategies advocated by the authors are educating health care providers about the unique power relationship that exists in the SAWP program, ensuring workers can (and now they can) access the public health-care system without undue financial constraint, and severing links between the health-care and immigration systems.
This week’s installment of Labour & Pop Culture looks at the 2005 film North Country. The film is a fictionalized account of Jenson v. Eveleth Mines (1984), one of the first successful sexual harassment lawsuits in the US.
Jenson endured harassment from male mine employees beginning when she commenced employment in 1975. Jensen’s 1984 efforts to gain redress from the Minnesota Department of Human Rights were unsuccessful and she faced further harassment in retaliation.
In 1988, she and 14 other women at the mine filed a class-action suit against their employer. As the suit progressed, Jensen resigned due to post-traumatic stress disorder. Despite an invasive discovery process, the women won. The 1995 judgment, however, was profoundly damaging to the women and they appealed the miniscule damages award. The company eventually settled in 1998 for $3.5 in damages.
It has been awhile since I’ve seen this film. But, given the recent profile of harassment in Hollywood, it might be worth watching again. Interestingly, the only other block-buster style films I could find about sexual harassment were 9 to 5 (1980), the wretched Disclosure (1994), and Horrible Bosses (2011). The latter two reverse the usual power dynamic to portray men as the victims.
The recent spate of sexual harassment allegations has triggered a couple of articles examining the role of human-resource departments. The crux of the analysis is that HR shops are intended to advance the employer’s interest. Not surprisingly, a key employer interest is mitigating liability.
When proactive measures (such as codes of conduct) haven’t been successful and a claim of harassment arises, HR shops work to contain the potential damage to the employer (often through complaint suppression). This line of analysis runs contrary to the usual picture presented of HR shops as neutral arbitrators or even a place that workers can go for help with problems.
The notion that the practice of HR is, in fact, an exercise of power over workers and in the interests of employers is generally absent from HR textbooks. This reflects that human resources is rooted in a unitarist view of the workplaces—that there are no inherent conflicts of interest in employment and that everyone is there to serve the employer’s interests. The employer’s interests are often couched as the organization’s goals, even though the goals have been developed by the employer with little consideration of the needs of other stakeholders.
One consequence of this dynamic is that HR staff often has to do things that would make most people uncomfortable. For example, they may be assigned to direct conflict into processes that delay resolution of conflict even though doing so exacerbates the impact of the harassment on the victim. Such a decision often makes sense of the employer since (absent any resolution) victims will often quit (or accept a small settlement in exchange for a gag order) and the problem goes away (for the employer, anyhow).
Some HR wonks can’t hack that kind of work and attrite out of profession (or into less conflictual HR functions—such a payroll or strategic planning). Those that stay tend to be (or become) hard cases, who are better able to manage the cognitive dissonance that goes with harming employees. This, in turn, reinforces the tendency of HR to act against the interests of a firm’s human resources.
Clearer discussion of this dynamic might help human-resource students make more knowledgable choices about the kind of career they want going forward.
Continuing with the workers’ compensation changes in Bill 30 (An Act to Protect the Health and Well-being of Working Albertans), today I wanted to examine the effect on receiving and maintaining compensation. This is a bit of a grab bag so I have broken the post up into sections.
Occupational Diseases It is often difficult for workers to get occupational diseases accepted by the WCB for compensation. Diseases often have long latency periods, murky causation, and workers sometimes have no idea that they were exposed to a substance that, years later, gives rise to their illness.
For this reason, diseases with clear occupational relationships are sometimes granted presumptive status. Basically, if you have the disease and you worked in the industry (sometimes for a set period of time), your disease is presumed to have arisen from and occurred during work.
Alberta’s list of diseases with presumptive status is determined by cabinet and contained in regulation. This list in regulation has not been meaningfully updated since 1982. Yes, 1982—good job there former Tory cabinet members… . (There have been some changes related to firefighter cancers and PTSD among certain first responders.).
a committee will be established to recommend changes around occupational diseases as new evidence emerges, and
the Appeals Commission can flag diseases and conditions that may warrant review by this committee.
Overall, these are good changes that will ensure the system stays abreast of changing medical evidence. It is hard to believe that workers have had to wait this long for such a common sense change. The only downside is that the legislation appears to limit presumptive PTSD status to first responders. Other workers (e.g., social workers) will have to still make a claim for PTSD as a psychological injury.
Psychological Injuries Unfortunately, Bill 30 does not make it easier for workers to receive compensation for psychological injuries sustained at work. At present, workers who wish to file a claim for an injury (such as chronic onset stress) must meet a much higher standard than other kinds of injury (e.g., a laceration). (Note that the test varies by type of psychological injury.)
To have a “regular” injury accepted requires only that an injury arise from and occur during work. This is a low threshold and disputes are assessed using a generous balance-of-probabilities approach. The rules around chronic onset stress claims give you a good idea of how hard psychological injuries are to get accepted (apologies for the length):
Claims for this type of injury are eligible for compensation only when all of the following criteria are met:
· there is a confirmed psychological or psychiatric diagnosis as described in the DSM,
· the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset stress,
· the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and
· there is objective confirmation of the events.
In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time.
Ongoing compensability for chronic onset stress will be accepted when the medical evidence shows that the work or work-related injury is the predominant cause of the current symptoms. (Policy 03-01, Part 2, Application 6, Question 11).
This is basically a "get out of compensation free" card for employers; workers can almost never meet this kind of standard. In its final report, the WCB Review Panel noted about psychological injuries:
[T]he use of special criteria for certain conditions, above and beyond the base “but for” test, effectively creates two classes of injured workers, with one of those classes facing a more uphill battle that the other to access benefits. … Our Panel believes that the WCB should examine its current use of the predominant cause threshold with a view to developing a better way of ensuring that an injury or illness was more likely than not caused by work. (p.84)
This kind of work may well be better left to the WCB to sort out in policy than to address in legislation. Yet, the WCB’s culture of claims denial makes me skeptical that they can be trusted to take such action. This seems like a missed opportunity.
Deeming Wages Presently, when workers are recovering from an injury and cannot return to their date-of-injury job, they get vocational rehabilitation services. These services vary depending on the worker but the idea is to get workers attached to the labour force and earning some kind of wage to reduce their compensation cost.
Workers who are unable to find a job within a certain time period have their wages “deemed”. Basically the WCB pretends they are earning wages (even if they are unemployed and the job they have been assessed for is not compatible with their job restrictions or doesn’t exist) and claws that amount out of their compensation.
This is deeply unfair (an injured worker recently called it “shitbaggery of the highest order” in a conversation) and is designed to benefit employers by reducing their claims costs, which, in turn, reduces their premiums. (Now you see why I’m skeptical of the WCB’s ability to fairly established criteria around psychological injuries.)
Bill 30 makes it harder for the WCB to deem wages by requiring that “the Board may [deem a worker’s earnings] only after the Board has demonstrated it has made every reasonable effort to support the worker in the worker’s search for suitable employment.” This does not preclude deeming, but it sets some limits around it: “every reasonable effort” is a high bar.
Return to Work Obligation Bill 30 creates an obligation on employers to re-employ injured workers when they are able to return to their duties. This gives workers greater access to their right to disability accommodation under the Human Rights Act.
At present, workers’ only recourse if their employer sacks them after an injury is a lengthy (~2 years) process with the Human Rights Commission that won’t really provide any remedy. This process profoundly disadvantages injured workers because their injury-related disability disadvantages them in the job market (i.e., they can’t put food on the table because they get no compensation (thanks to deeming) or wages (thanks to the employer’s discrimination)).
If employers illegitimately don’t comply with their RTW obligations (e.g., sacking the worker without reason), the WCB must levy a financial penalty of up to a year’s salary, which can then be turned over to the worker. Employers are also required to continue health benefits for a period of time (which workers may use in addition to their WCB coverage).
This is a significant win for workers, reducing the chance that their employer will simply sack them once they are injured. Together with tighter controls on deeming, this should make things better for injured workers. How well this workers will turn on the degree to which the WCB can change its culture of denial.
In June of 2018, the federal government is expected to legalize pot. Many employers have, in the past, expressed concern about the safety effects of drug use in the workplace. And there is ongoing litigation about mandatory random drug testing at a worksite in Fort McMurray.
The Institute for Work and Health has very helpfully posted some preliminary information about the state of research on the effects of cannabis on work safety. IWH researchers do high-quality work and are currently doing a systematic review of the research on the effects of various drugs on workplace injuries, deaths and near misses.
While the review has not yet been completed, the authors have shared some preliminary findings:
1. There are no published studies on the effects of legalized recreational cannabis on workplace outcomes. This is important because employers must typically demonstrate some minimal level of proof to support policies such as random drug testing.
2. The broader evidence of cannabis use on workplace outcomes (e.g., attendance, turnover, injuries) is highly conflicted and no conclusions can yet be drawn. This suggests that the popular perception of pot as problematic may be incorrect. There is also no data about the incidence of workplace cannabis use.
3. The evidence on cannabis use in safety sensitive positions is mostly based on studies of driving behaviours. Extrapolating these studies to other safety-sensitive jobs is likely analytical over-reach.
4. Cannabis-use testing does not establish impairment (whereas testing for alcohol can do so). This poses a major barrier to research and practice.
This kind of research is helpful because it demonstrates that the current state of knowledge about the workplace effects of legalizing dope is very limited.
This is not all that different from what we know about other forms of drug use in the workplace. The short of that is that there is little evidence linking drug use (as distinct from alcohol use) to increased injury rates (which surprised me) and there is little evidence suggesting that random testing reduces injury rates (less surprising if there is no relationship between drug use and injury to begin with).
That absence of evidence has not stopped employers from advancing mandatory drug testing policies (which workers and unions have resisted). You can read about a 2012 dust-up on this issue here.
Employers typically argue that, despite the lack of evidence to support their policies, they have an obligation to ensure workplace safety and, thus, they have to do something. Setting aside their assumption that there is a problem (which the evidence suggests there isn’t), the idea that employers ought to act to make workplaces safer based only on suspicion of harm is an interesting one.
This approach resonates with the precautionary principle in occupational health and safety, which states that, where an employer believes that a workplace substance or process may cause harm, then it should be up to the person advocating for the substance or process to prove it does not cause harm.
Interestingly, employers have generally resisted the precautionary principle when it might apply to the potentially toxic substances or process they choose to expose workers to. Given this, that they suddenly (and narrowly) laud the precautionary principle around drug testing ought to be viewed with suspicion.
If employers are truly motivated to make workplaces safer, then they ought to be come to the table and make a trade: workers might agree to having their privacy breached if, in exchange, the employer agreed to imposing the same standard on the substances and processes (e.g., shift work) that they subject workers to.
I’ll believe that when I see it.
-- Bob Barnetson
PS. Although it is irrelevant to the argument I’ve presented above, please note that (1) I don’t use pot, (2) I have never used recreational drugs (in 1989, I had 10 narcotic-based painkillers prescribed for a tooth absence but that was not recreational!), and (3) I’m pretty ambivalent about legalization. I disclose this to forestall the (shitty) arguments that arose that last time I wrote on this subject essentially accusing me of using my position to advance my own (presumably wild!) drug use.
This summer, I ran across a very interesting article exploring how trans workers face greater precarity of employment. “Gender Transition and Job In/Security: Trans* Un/der/employment Experiences and Labour Anxieties in Post-Fordist Society” explores how the pressure on workers to “use their bodies and working personas to create pleasant interactions and good experiences for customers and clientele” can negatively affect those workers whose bodies fall outside of conventional norms of beauty or normality (p. 168).
In effect, gender normative expression acts as a key determinant of employment. The devaluing of non-gender-conforming workers negatively affects them economically, physically, and psychologically. This is a fascinating article that explores the treatment of trans workers—something that I don't think I have every encountered in any of the HR texts or research that I’ve examined.
This lacuna in HR pedagogy is itself fascinating because not talking about trans workers reinforces (perhaps unintentionally) the social exclusion of trans workers. It reminds me a bit of how HR texts dealt with sexual orientation prior to the Vriend decision (i.e., they ignored sexual orientation). Interestingly, since then, HR texts have largely continued to marginalize issues of sexual orientation by lumping them into a brief discussion of how to avoid complaints of discrimination on the basis of various protected statuses.
Few books explicitly sexual orientation in the sections they have on diversity. In this context, diversity basically means female workers, workers with disabilities, and workers of colour (although largely exclusive of Indigenous workers). As this article reveals, the silence of HR around the employment experiences of trans workers comes at a great cost to the workers themselves.
This week’s installment of Labour & Pop Culture is “Streets of Philadelphia” by Bruce Springsteen. The song is from the soundtrack to the move Philadelphia, which was the first mainstream film to address AIDS.
The film centres on a gay attorney (Andrew Beckett, based on the real life story of Geoffrey Bower) who is fired from his firm, allegedly for incompetence. Really, he has been fired because of his disease. Beckett wins in the end, just in time to die.
I picked this song because next Friday (April 28th) is the National Day of Mourning for workers killed and injured at work. Ceremonies will be held in Edmonton in Borden Park at noon.
While we most often associate workplace injuries and fatalities with acute injury events (falls, crushes, explosions, etc.) or motor vehicle accidents, occupational disease is a significant and often unrecognized source of injury.
Workers with occupational diseases often have great difficulty gaining compensation of their injuries (diseases are complex, having long latency periods and murky causality). Many workers with occupational diseases also face discrimination, much like Tom Hanks’ character in Philadelphia.
Social isolation and depression often ensues. Springsteen captures the psychological effect of this well:
I was bruised and battered, I couldn't tell what I felt. I was unrecognizable to myself.
And
I heard the voices of friends, vanished and gone
I was bruised and battered, I couldn't tell what I felt. I was unrecognizable to myself. Saw my reflection in a window and didn't know my own face. Oh brother are you gonna leave me wastin' away On the streets of Philadelphia.
I walked the avenue, 'til my legs felt like stone, I heard the voices of friends, vanished and gone, At night I could hear the blood in my veins, It was just as black and whispering as the rain, On the streets of Philadelphia.
Ain't no angel gonna greet me. It's just you and I my friend. And my clothes don't fit me no more, I walked a thousand miles Just to slip this skin.
Night has fallen, I'm lyin' awake, I can feel myself fading away, So receive me brother with your faithless kiss, Or will we leave each other alone like this On the streets of Philadelphia.
I've appended below my submission. I chose to focus on the absence of concerted activity protections in Alberta's Labour Relations Code. The argument that I've advanced is that Alberta workers currently face profound impediments to exercising their associational rights and, give the direction of the Supreme Court's recent decisions on freedom of association, this creates an obligation on Alberta to statutorily protect concerted activity.
-- Bob Barnetson
Dear Mr. Sims,
Thank you for the opportunity to make a submission regarding changes to the Labour Relations Code.
I would like to propose remedying the lack protection in the Labour Relations Code for concerted activity. Presently, workers who exercise their Section 2(d) associational rights for any legitimate labour-relations purposes other than organizing or administering a trade union have no protection against or recourse in the case of employer retaliation.
By contrast, Section 7 of the US National Labour Relations Act (NLRA) protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection”. Examples of such activity include the recent Fight for 15 campaigns, efforts to improve working conditions in non-unionized workplaces, collective whistleblowing activity, and work refusals that fall outside of the ambit of health and safety legislation.
This gap in Alberta’s Labour Relations Code fundamentally undermines workers’ ability to meaningfully exercise their associational rights. This, in turn, obligates Alberta to take affirmative action to facilitate the exercise of these rights.
In support of this assertion, I would point to the recent trend in Supreme Court of Canada decisions is to view associational rights in increasingly expansive terms. As recently noted by Ritu Khullar and Vanessa Cosco (2016), in Mounted Police, the Court found that “a key purpose of section 2(d) is to protect the ability of individuals to join with others to meet, on more equal terms, the power and strength of other groups or entities” (p. 30).
This view has been informed by Chief Justice Dickson’s 1987 dissent in Alberta Reference, wherein he asserted the
[87] Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association …has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict. …
[88] What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.
Note that Chief Justice Dickson’s focus was on the relationship between marginalized individuals and the powerful (rather than simply the relationship between individuals and the state). The Court, in Mounted Police, adopted this focus when it stated:
[66] In summary, s. 2(d), viewed purposively, protects three classes of activities: … (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.
In Dunmore, the Court noted that the state can be obligated to take affirmative action in order to protect or facilitate the exercise of fundamental freedoms. In Fraser, the Court stated that circumstances where it is impossible to meaningfully exercise a freedom would be a violation of the Charter.
I would put to you that, in contemporary Alberta, non-unionized employees are in a situation where, if they exercise their associational rights, their employer can terminate or otherwise detrimentally manipulate (through scheduling changes and temporary layoffs) their employment.
This dynamic places non-unionized employees in a position where they cannot collectively and meaningfully exercise their associational rights except by forming or joining a union and certifying their workplace. Given that the unionization rate in Alberta is approximately 20% (the lowest in Canada), unionization is clearly not a realistic option for most workers.
Based on Dunmore, the absence of a meaningful way for workers to exercise their associational rights creates an obligation on Alberta to take affirmative action to facilitate this exercise. Introducing concerted activity protections to the Labour Relations Code would be an appropriate way to facilitate and protect the exercise of non-unionized workers’ associational rights.
Thank you for the opportunity to make this submission.
Dr. Bob Barnetson Professor, Labour Relations Athabasca University
This week’s installment of Labour & Pop Culture is “This Land is Your Land” written by Woodie Guthrie. Most people are familiar with the first three verses of the song (it is a standard of school and camp sing-alongs).
The real meat of the song is in the last verses which Guthrie didn’t record, possibly because he feared the communist witch-hunt lead by Joseph McCarthy during the 1950s.
They talk about how the institution of private property undermines the ability of average American’s to enjoy the country that is their birthright.
As I went walking I saw a sign there And on the sign it said "No Trespassing." But on the other side it didn't say nothing, That side was made for you and me.
And they draw attention to the grinding poverty that many Americans experience due to the operation of a capitalist economy.
In the shadow of the steeple I saw my people, By the relief office I seen my people; As they stood there hungry, I stood there asking Is this land made for you and me?
The prevalence of gated communities, food banks, urban ghettos, and xenophobia that is evident in the United States today suggests progress (for the many) has been slow and uneven. I chose Bruce Springsteen’s cover of the song because he sings the less common verses (including the more critical ones).
This land is your land This land is my land From California to the New York island; From the red wood forest to the Gulf Stream waters This land was made for you and Me.
As I was walking that ribbon of highway, I saw above me that endless skyway: I saw below me that golden valley: This land was made for you and me.
I've roamed and rambled and I followed my footsteps To the sparkling sands of her diamond deserts; And all around me a voice was sounding: This land was made for you and me.
When the sun came shining, and I was strolling, And the wheat fields waving and the dust clouds rolling, As the fog was lifting a voice was chanting: This land was made for you and me.
As I went walking I saw a sign there And on the sign it said "No Trespassing." But on the other side it didn't say nothing, That side was made for you and me.
In the shadow of the steeple I saw my people, By the relief office I seen my people; As they stood there hungry, I stood there asking Is this land made for you and me?
Nobody living can ever stop me, As I go walking that freedom highway; Nobody living can ever make me turn back This land was made for you and me.
I’m currently revising AU’s course on Human Rights, the Charter and Labour Relations. One of the recurring challenges that students identify is how difficult it can be to read and understand court decisions (specifically Supreme Court of Canada decisions).
While I’m including some skill-building components around reading court decisions, it is useful to reflect on (1) why we need to read these decisions and (2) why they are hard to read. The short video above is about the US Supreme Court but its logic is broadly applicable to Canada.
We need to read the decisions because they establish important legal precedents and explain why these precedents are established. And these decisions are difficult to read because the Supreme Court is a political institution that is seeking to achieve multiple outcomes (including resolving the case) with its decisions.
This week’s installment of Labour & Pop Culture is “Nothin’ to Die For” by Tim McGraw. On the surface, this song is about alcoholism and how it ruining the subject’s life. Overall, it is a pretty vanilla take on addiction designed to tug at the heart strings of country music fans without offering much insight.
The work-related piece is the second verse (which is the most interesting part of the song):
So what's the harm in a little fun?
'Cause you're off to work before the sun everyday
And the inbox/outbox locks you in
And the money you make ain't worth the time you spend to make your pay
The doctor says, "Man, your numbers - they don't lie."
The graveyard's full of folks that didn't have time to die
This verse sheds a bit of light on one factor that is driving the worker to drink: his job requires him to be at work long hours. He feels trapped (“the inbox/outbox locks you in”) and wishes he didn’t have to trade so much of his (finite) time to earn a living. Not surprisingly, he drinks to cope with this stress.
I’m not saying this is a great song: its strikes me as bible-bet, boot-strap, flag wavin' country music that you might hear on the first album by an American Idol runner up. Certainly there was scope to examine addictions with more nuance. But acknowledging the link between “bad” jobs and addiction does a service.
I noticed a few weeks ago that employers were using the impending decriminalization of marijuana to once again bang the drug-testing drum. Basically, they are concerned that workers will start arriving at their jobs stoned (cause every time a new liquor store opens, we all show up wrecked on chardonnay…?).
What many of these employers (generally in the petroleum and construction industries) don’t want to discuss is how the way in which they structure work (long hours, boring, lengthy periods of isolation) may contribute to drug an alcohol usage rates among their workers.
Stopped to have a few at five
Now you're crossing that center line for the third time
Second time like this this week, had a friend ask you for your keys
You said, "No, I'm fine."
You sure do act like you ain't got a thing to lose
But every car you pass might be the one you take with you
[CHORUS]
You'd give your last breath to your wife
Take a bullet for your kids
Lay your life down for your country, for your Jesus, for your friends
There's a whole lot of things you say you're living for
Well, you've got to fight it somehow, stop and turn around
'Cause this ain't nothin' to die for
So what's the harm in a little fun?
'Cause you're off to work before the sun everyday
And the inbox/outbox locks you in
And the money you make ain't worth the time you spend to make your pay
The doctor says, "Man, your numbers - they don't lie."
The graveyard's full of folks that didn't have time to die
CHORUS
Straight through that guardrail up into that white light
You hear a sweet voice saying just this side of the other side
Just this side of the other side
CHORUS
Ain't nothin' to die for
Nothin' to die for
Ain't nothin' to die for, no
In Edmonton this Saturday, Migrante Alberta will be hosting a free screening of Migrant Dreams, a powerful feature documentary by multiple award-winning director Min Sook Lee (El Contrato, Hogtown, Tiger Spirit) and Emmy award-winning producer Lisa Valencia-Svensson (Herman’s House).
The film tells the undertold story of migrant agricultural workers struggling against Canada’s Temporary Foreign Worker Program (TFWP) that treats foreign workers as modern-day slaves.
The Canadian Seasonal Agricultural Workers program (CSAWP) began in 1966 as a government agreement between Jamaica and Canada. For the past 50 years, the migrant farm workers have arrived in Canada under conditions that are akin to indentured labour.
Migrant Dreams exposes the underbelly of the Canadian government labour program that has built a system designed to empower brokers and growers to exploit, dehumanize and deceive migrant workers who have virtually no access to support or information in their own language. Workers willing to pay exorbitant fees to work at minimum wage jobs packing the fruits and vegetables we eat in our homes. Migrant workers who deserve basic labour and human rights. Canada it seems, has failed them.
The screening will be at the U of A ECHA Building (11405 87 Ave.) on Saturday, October 1st at 2:00pm. You can learn more on Facebook. There will be a short discussion after the film.
There was an interesting appeal decision on a discrimination case out of Ontario last week. Vicky Strudwick became deaf late in life (possibly as a result of a virus). Her Mississauga employer failed to accommodate her disability.
According to court documents, the employer also undertook a campaign of abuse designed to force her to quit. You can read the court decision here.
The Toronto Star summarized some of the “high”-lights of the employer’s performance:
Both bosses “tormented (Strudwick) for the specific purpose of making the work environment intolerable,” the court noted in its sharply worded decision, citing evidence presented in court last summer.
This included advising co-workers not to talk to Strudwick and to telephone her with information she needed. Not hearing the phone — thereby missing the information — provided her superiors with an opportunity to chastise her.
When Strudwick requested workplace accommodations — including a Canadian Hearing Society assessment, visual fire alarm, a special telephone designed for hearing impaired people, and permission to turn her desk around so she could see people as they approached her — Hoffman denied them, taking the position they were “unnecessary,” the court decision stated.
Strudwick was eventually fired, which led to lengthy legal proceedings. Strudwick won her case but appeals the damages. Ontario’s Court of Appeal increased the damages awards by more than $100,000 to $266,000. The employer’s efforts to shift the damages to its managers was unsuccessful.
Overall, this case unscores the financial and reputational peril faced by employers who seek to push workers requiring accommodation out of the workplace.
Wednesday, June 1, 1:30-3, Math Sciences 217: (with Jason Foster) Impact of Temporary Foreign Workers on Alberta construction employment patterns.
Thursday, June 1, 9-10:30, Math Sciences 319: (with Jason Foster) Move it along, nothing to see here: The construction of workplace injury in Canadian newspapers.
Thursday, June 1, 1:30-3, Math Sciences 211: Challenges of organizing Farm workers in Alberta (panel)
Thursday, June 1, 3:15-4:45, Math Sciences 211: Urban and industrial: The structural challenge of rural engagement by Alberta unions
I will be posting my presentations up over the next few days.
Today is equal pay day. The most compelling story on pay equity recently is the suit filed by
members of the US National Women’s Soccer Team alleging gender-based wage discrimination. You can read the
story but this slide show (unfortunately embedded in Facebook) tells the tale
better.
While straight-up
old-school wage discrimination remains an important issue, new research
suggests that social policy plays an important role in mitigating the wage
penalty associated with having children.
