Alberta Labour 2023 Annual Report

Alberta has released its 2023 annual report for the part of the government that was at one time called Labour and that relate to Albertans being safe and treated fairly in the workplace.

Fairness at Work Declines

The number of employment standards complaints filed were up by about a third in 2022/23. Complaints tend to reflect a fraction of overall violations; most workers don’t bother reporting things like wage theft.



This is an interesting reversal of a long-term decline in employment standards complaints.



Notably, the time to begin an investigation tripled and the time to resolve a complaint doubled. This has long been a bugbear in the employment standards system. The report asserts this reflects increasing volume and complexity.

The number of complaints investigated with signs of human trafficking jumped from 102 in 2021/22 to 208 in 20223/23.

The number of administrative penalties issued to employers dropped from 3 in 2021/22 to zero in 2022/23.

Safety: Losing the Will to Enforce

Worksite inspections plus re-inspections totalled 13,717 in 2023/23, down 12% from 15,569 in 2021/22. If you look later in the report for some context, this is about 6% fewer inspections/re-inspections than in 2018/19 (14,590), which was the last full year when the NDs were in power. At this rate, the inspection cycle is theoretically about once every 15 years (give or take).



About 80% of inspections were the results of complaints while the remaining 20% were targeting industries with safety problems. There were 1207 proactive inspections in 2022/23 resulting in 1725 orders issued. This is down from 2021/22, with 2100 inspections and 2548 orders. I couldn't find any historical data in this to provide context.

The number of investigations (e.g., of injuries) dropped by 60%, from 2245 in 2018/19 to 888 in 2022/23.

Orders written were up slightly over 2021/22 to 9099. This may be good (more enforcement) or may be bad (more violations occuring)—hard to say. If you look at 2018/19, there were 16,680 orders issued.

Ticketing of violators was down. There were 27 tickets with a total value of $11,280 issued in 2022/23. This is slightly fewer than in 2021/22 (32 tickets, $11,500). This reporting leaves out important context. If you look at 2018/19, there were 479 tickets issued.

Administrative penalties were also down. There were 17 penalties worth $62,025 issued in 2022/23. This is notably fewer than in 2021/22 (37, $314,250).

Convictions were also down, with 2022/23 seeing $1,740,750 in fines assessed. This is down from $1,919,000 in 2021/22. There was no reporting of the number of convictions but a hand count suggests the number is stable the last few years at around (hand-waggle) 10 per year, down from more than 20 in 2018/19.

Injury Rates are Up: Yeah, it’s mostly COVID.

The lost-time claim rate rose for at least the seventh straight year. Much, but not all, of this increase is due to COVID-19 injuries.



The disabling injury rate (lost-time plus modified work) is also up. Again, much but not all of the increase is due to COVID injuries.



The absence of meaningful government protocols related to aerosol spread put responsibility for these COVID-related increases squarely on the shoulders of government.

Interestingly, the absolute number of accepted fatalities is down to 120 (from 136). There is no real analysis of that change. It could be the result of changes in the workforce composition. It could also just be random variation (small numbers tends to be swingy).

Analysis

Overall, it looks like the government continues to lose the will and/or capacity to meaningfully enforce workplace safety rules under the UCP. Not surprisingly, the rate of injury has risen, likely because workplaces are more dangerous.

There has also been an uptick in complaints about employment standards (basically wage theft). This could be caused by more workers knowing to and being willing to come forward. I’d guess, though, that this reflects employers knowing it is open-season on workers under the UCP and, thus, stealing wages more frequently.

-- Bob Barnetson

Another worker dies, nothing much happens.

Yesterday, CBC reported that three companies had been charged in a November 2021 workplace death. The worker was testing a pipe when a valve broke and killed the worker. Among the notable parts of the story is that the employer failed to conduct a hazard assessment and failed to identify a hazard.

The effectiveness of the OHS system rests on employers identifying hazards. When an employer fails to do this rudimentary task, the rest of the system doesn’t work because unidentified hazards can’t be controlled and workers die as a result.\

Unfortunately, Alberta employers often don’t bother to identify hazards. A 2018 survey of 2000 Alberta workers found only 50% of their employers had hazard assessments. And only 59% regularly provided information about hazard-control strategies for at least some of the hazards workers faced.

So, now that OHS has filed charges almost two years after the event, what is likely to happen in this case? The rest of the CBC article talks about other fatalities and gives you a pretty good idea.

The employers’ lawyer(s) will likely stall some. A year or two from now, one of the employers will plead guilty to a single charge and pay a relatively small fine ($100-300k). In the meantime, it will be business as usual.

If you think this sounds like a pretty ineffective approach to protecting workers, you’d be right. The same study found that roughly 1 in 5 Alberta workers reported injuries (of varying degrees) each year and 1 in 11 received a disabling injury (where they could not do some or all of their job the next day).

Underlying ineffective enforcement is basically a lack of political will to punish employers to maiming and killing workers. Indeed, the UCP substantially weakened OHS laws during its first term. Not surprisingly, the rate of worker injury has risen under the UCP’s watch.

-- Bob Barnetson

Resisting company doctors through moral suasion

Unionized workers can make gains and stave off concessions by attaching costs to employer behaviour in the hope that the employer will decide to behave differently.

Most often, we think about strikes. Strikes attach primarily financial costs to employer intransigence at the bargaining table by disrupting production. If the strike causes the employer enough pain, the employer tends to compromise.

Moral suasion is a different way to attach costs to employer behaviour. Athabasca University’s (AU’s) unsuccessful efforts to impose company doctors on its academic staff provides a useful example of this tactic and its limitations.

AthabascaU’s demand for company docs

In 2018, AU pushed its workers to agree to new contract language around company doctors. Essentially, the employer wanted to be able to send a worker for a so-called independent medical examination (IME) if:

• the worker used sick leave frequently or for a prolonged period,
• the employer believed the worker was unable to do their duties due to illness or disability, or
• the employer believed a worker was mis-using their sick leave.

This proposal would give the employer a largely unfettered ability to impose and IME upon pain of discipline and/or loss of sick leave. Such a power would:

• interfere with workers being able to choose their own health-care providers,
• open the door to illegitimate employer demands for non-therapeutic medical examinations, and
• would end-run the requirement for the employer to get an arbitrator’s order to require an IME. 

Seventy-seven percent of union members were opposed to this proposal. Of particular concern to the union’s members were the possibilities of:

• worker fear of being sent to an IME might cause them to not use their sick leave when its use was medically required,
• when workplace harassment had caused a worker’s performance to deteriorate or the worker to go off sick, the employer might weaponize the IME process to further harass the sick member, and
• the medical opinion of a company-paid doctor may result in a refusal of sick leave or the alteration of work restrictions set out by the worker’s treating physician.

The employer’s rationale for this proposal was cost-savings (i.e., no arbitration hearing required). In fact, the proposal shifted costs from the university (lower financial costs) to the worker and their families (less privacy and greater stress).

There was, of course, no evidence of any meaningful level of sick leave abuse. A review of 15 years of union files (with a membership of more than 400 workers) identified one case where the university officially raised concerns about the accuracy of medical information provided to the employer. This was conern was resolved.

Pushing back on company docs

Resisting company doctors could certainly form part of the basis for a strike mandate. But there is always the risk that members might be willing to accept company-doctor language as part of a package deal (i.e., if the employer offered something good in exchange) or to avoid a strike (if company doctors was the only major issue). Given this risk, the union opted to explore a different approach first.

The company-doctor proposal was obviously repugnant. The union also suspected it was being driven by the desires of the HR shop, rather than being a core mandate from the university’s Board of Governors (which was the ultimate decision maker). These factors opened the door to applying moral pressure on Board members to abandon the proposal.

Activists identified 15 members who (1) were secure in their jobs, (2) had experience with ill-health that required medical leave, and (3) had a reasonable degree of political acumen. The union then used its membership map to divide them into five three-person groups based on pre-existing relationships.

Each team was tasked to write a five-paragraph letter to individual Board members (the union provided contact details). The first and last paragraphs were boilerplate, respectively introducing the issue and asking the Board to drop its proposal.

Each team member wrote one of the middle three paragraphs, disclosing their personal experience with medical leave and explaining how the company-doctor proposal would have affected and harmed them. The letters were heart wrenching and drove home the odious nature of the Board’s proposal.

The union coordinated the members sending their letters such that Board members received a new letter every week. The Board members eventually concluded that their negotiating team’s proposal truly was not worth pursuing because, shortly thereafter, the employer’s chief negotiator said “company doctors (suddenly!) wasn’t a hill to die on” and the proposal fell away.

Analysis

This example illustrates one (of myriad) ways that workers can attach costs to employer behaviour and, thereby, possibly change it. The costs attached by the letters were mostly emotional. Few people (even employers!) enjoy being shown how their behaviour will profoundly and personally harm others.

The Board members may also have been concerned about being publicly and personally associated with such a disgusting and harmful proposal. That threat was not contained in the letters, but was an obvious next step and was part of the union’s overall escalation strategy.

Having workers write about their very personal experiences of ill-health appeared more effective at driving home to the employer how awful the proposal was than were the union’s broader communications about the proposal. The pressure exerted by the letters was applied discretely enough that there was no real loss of face for the employer in doing so.

The union members, both those directly involved and those who simply heard about the tactic, got to see how they could take effective action to protect their own interests. This built confidence among the members in their ability to resist employer demands and advocate for themselves.

A weakness of this tactic is that it creates the possibility of a rapid reversal by the employer. For example, if the employer catches even one worker malingering or faking sick in the future, it is likely to bring this proposal back to the table. And, because the employer will feel like it got emotionally manipulated into withdrawing the earlier proposal, the employer will likely pursue the renewed proposal vigorously. In this way, both the employer and the union now have a shared interest in ensuring no workers malinger.

-- Bob Barnetson

How OHS sentences are determined

Many labour-side practitioners assert that the financial penalties levied against employers that violate occupational health and safety rules are so low that they do not serve as a deterrent to future violations by the same or a different employer (basically, they are just the cost of doing business). In some jurisdictions, employers can be subject to modest tickets or administrative penalties for violations. Where an employer has done something serious, they can also be subject to prosecution under OHS legislation. 

Pleading or being found guilty can result in fines being assessed by the court within whatever range is set in the legislation. Section 48 of the Alberta’s OHS Act, for example, sets the maximum penalty for a first-time violation at $500,000 (plus a 20% victim surcharge) and/or not more than six months of imprisonment. (In theory, employers can also be charged under the Westray provisions of the Criminal Code, but that basically never happens. Similarly, jail time for an OHS prosecution is almost never imposed.)

There were 11 (or maybe 12, see below) convictions in Alberta under the OHS Act in 2022:

• Precision Trenching Inc pled guilty to a 2018 trench collapse fatality and paid a fine of $275k.
• Insituforms Technology Inc pled guilty to a 2019 serious injury and paid a fine of $100k.
• Emcom Services Inc pled guilty to a 2019 serious injury and was fined $86k. (This conviction appears twice on the list, but I think that is an error).
• Amyotte’s Plumbing & Heating Ltd pled guilty to a 2019 fatality and was fined $170k.
• Joseph Ogden pled guilty to a 2019 fatality and was fined $80k.
• Trentwood Ltd pled guilty to a 2020 fatality and was fined $150k.
• The Town of Picture Butte pled guilty to a 2020 serious incident and was ordered to pay $87k in creative sentencing.
• Kikino Metis Settlement pled guilty to a 2020 serious incident and was ordered to pay $8.5k in creative sentencing.
• McCann’s Building Movers Ltd pled guilty to a 2020 fatality and was fine $320k.
• Polytubes 2009 Inc pled guilty to a 2020 serious injury and were ordered to pay $100k in creative sentencing.
• Cross Borders Consulting Ltd pled guilty to a 2020 fatality and was fined $324k.

This is a pretty typical year in terms of numbers and fines. Often employers face multiple charges and, as we saw in 2022, plead out to a single violation and fine.

A recent Saskatchewan Court of King’s Bench sentencing decision following a workplace incident that left a worker paralyzed is helpful in understanding the factors used when the Court’s determine fine levels. The maximum fine available to the judge in Saskatchewan was $1.5 million. Paragraph 12 sets out the factors commonly used to assess penalties.

[10] R v Westfair Foods Ltd., 2005 SKPC 26, 263 Sask R 162 [Westfair Foods] is a seminal case in Saskatchewan for the sentencing of corporations for OHS violations causing injury. At paragraph 38, Whelan J. distilled the essential principles from the case law and academic works as follows:

i. The primary objective of regulatory offences is protection and in the context of occupational health and safety legislation, it is the protection in the workplace of the employee and the general public.

ii. The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest sense and includes specific deterrence, general deterrence is a paramount consideration.

iii. There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstances of each case. The following is not an exhaustive list of factors that may be considered, but they are likely relevant to most occupational health and safety offences:

• the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and the extent of its activity in the industry or community;
• the scope of the economic activity in issue - the value or magnitude of the venture and any connection between profit and the illegal action;
• the gravity of the offence including the actual and potential harm to the employee and/or the public;
• the degree of risk and extent of the danger and its foreseeability;
• the maximum penalty prescribed by statute;
• the range of fines in the jurisdiction for similar offenders in similar circumstances;
• the ability to pay or potential impact of the fine on the employer's business;
• past diligence in complying with or surpassing industry standards;
• previous offences;
• the degree of fault (culpability) or negligence of the employer;
• the contributory negligence of another party;
• the number of breaches - were they isolated or continued over time;
• employer's response - reparations to victim or family - measures taken and expense incurred so as to prevent a re-occurrence or continued illegal activity, and;
• a prompt admission of responsibility and timely guilty plea.

This decision also helpfully discusses the law on sentencing when government amend legislation to raise fine levels. Paragraph 18 quotes the Nova Scotia Supreme Court’s decision in Hoyeck:

[25] … For Courts to give "the legislative intent its full effect" we cannot be bound to prior sentencing ranges that do not reflect the Legislature's view of the gravity of the offence and society's increased understanding of the severity of the harm arising from the offence (see paras. 108-109). An upward departure from prior precedents is appropriate to arrive at a proportionate sentence.

As set out in Paragraphs 24 and 25, the Saskatchewan judge fined King Stud $126k (effectively one year of net proceeds) to be paid of a time period to be determine later. The range of fines

[24] A total penalty (fine and surcharge) of roughly one year’s net proceeds to the principals of the corporation, with time given to pay, is a proper balancing of all of the factors in this case - including the fact that, other than its early guilty plea, virtually none of the Westfair Foods factors are in King Stud’s favour, and some of them (such as its compliance record before and after this incident) are strongly against it.

[25] Such a fine will be a very significant penalty to the principals of the corporation but should not be so debilitating as to cause the collapse of King Stud. Will it be extremely uncomfortable for them for several years? Undoubtedly; but not nearly so uncomfortable as the rest of Dawson Block’s life will be for him, as a result of their actions or inaction.

It’s hard to know if this fine will cause the employer (which had an appalling safety record before this entirely foreseeable injury) to alter its behaviour or serve as a deterrent to other employers. I’m pretty skeptical. These were bad actors who got busted after the fact for yet another fall protection violation.

An interesting part of the discussion was the court’s efforts to set the fine at a level that served as a deterrent but was not so high that the owners of the corporation just walked away from the corporation (and thus the fine goes unpaid). The impact of limited liability corporations to shield owner-operators from some or all of the consequences of the corporation’s actions is a recurring bugbear for enforcing employment laws.

Perhaps, rather than further raising fine maximums (which seems to have a modest impact on actual fine levels) and perhaps fine minimums, legislatures might consider piercing the corporate veil to hold directors personally liable for unpaid OHS fines?

-- Bob Barnetson

More on COVID and OHS

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

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

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

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

According to CBC, Smith said:

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

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

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

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



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

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

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

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

-- Bob Barnetson

Alberta KB decision on government edicts prohibiting mandatory masking in workplaces

Recently, I blogged about how the UCP’s changes to joint health and safety committees has basically rendered them ineffective. I used the elimination of masking mandates at Athabasca University (and other PSEs) as an example of how the internal responsibility system and the external responsibility system were failing workers.

Of note was the direction given PSE institutions by the Minister of Advanced Education to drop masking requirements. My position was that the Minister did not have the authority to order institutions to not comply with the OHS Act (which obligates them to take all reasonably practicable steps to protect workers from occupational hazards, such as COVID).

Yesterday, a Court of King’s Bench decision dropped that is relevant. In it, the judge notes that the Minister of Education, who prohibited school boards from requiring mandatory masking, had overstepped her authority. The nub of it was that the Minister needed to issue such direction in the form of a regulation, rather than just make a statement. Absent a regulation, the Education Act empowers school boards to make their own policies.

Presumably, PSE boards of governors would be in the same situation as school boards since section 59 of the Post-Secondary Learning Act (which addresses the power of PSE boards) is very similar to the language in the Education Act. That is to say, boards are not enjoined from implementing mandatory masking (or vaccination) policies simply because the Minister of Advanced Education said so.

If cabinet enacts a regulation (under the Regulations Act) enjoining boards from implementing masking policies, we them to consider whether such a regulation trumps the requirement set out in section 3 of the Occupational Health and Safety Act that boards, as employers, must take all reasonably practicable steps to protect the health and safety of workers. This includes an obligation, under section 9 of the OHS Code to control hazards.

This is all mostly an academic matter for two reasons. 

First, COVID-related policies in Alberta PSEs seem to fall clearly into the “minimizer” camp and decisions about protections are simply left to individuals. Basically, there is no political will among campus administrators to protect workers or students from COVID. 

Individualizing OHS issues (e.g., “you can wear a mask if you like”) ignore that masking is most effective when it is uniformly adopted. This makes intuitive sense: if everyone masks, we have two layers of protection against aerosol transmission versus one layer under the current "wild west" policy approach. This approach also ignores that ventilation (something only an employer can address) can reduce transmission.

Second, as I wrote about in September, Alberta’s OHS officers seem unwilling to engage with the hazard of aerosol transmission. This seems like an enormous dereliction of duty given Alberta’s workplace COVID stats (the screen cap below is from October 28, 2022--note the sectoral distribution of COVID claims...). Clearly COVID is a serious workplace hazard in Alberta. The only sector that seems to still recognize that is health care.



-- 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

2020 national work-related fatality and injury stats

Sean Tucker and Anya Keefe from the University of Regina have released their annual report on workplace fatalities and injuries. This year’s report rolls up the 2020 data but also includes a section on COVID-related injuries and fatalities from 2020 and 2021.

The nub of the report is that, nationally in 2020:

• There were 924 accepted WCB claims for fatalities, with about two-thirds being caused by occupationally-related diseases.
• There were also 254,000 accepted claims for lost-time injuries.

Specific to Alberta in 2020:

• Among provinces, Alberta had the second highest five-year average injury fatality rate, although there was a slight decline noted in 2020’s injury fatality rate.
• Among provinces, Alberta had the third highest five-year average disease fatality rate, although there was an increase noted in 2020’s disease fatality rate.
• Among provinces, Alberta had one of the lowest five-year average lost-time claim rates, although there was a slight increase noted in 2020’s lost-time claim rate.

I have nicked the relevant graphs from the report:

Looking at COVID claims:

Alberta had the second highest number of COVID-related fatality claims accepted (31) in 2021.

• Alberta had the third highest level of COVID-related injury claims accepted (7846) on 2021. There were 4800 accepted in 2020.

Alberta seems to be performing markedly worse than BC (despite BC’s slightly higher population). That said, it is a bit hard to know what to make of COVID claims data at this point because they may be affected by WCB policies as much as anything else.

-- Bob Barnetson

More data on underreporting of workplace injuries in Ontario

The Institute for Work and Health has released results of a new study that matches emergency room visit records with workers' compensation data. In theory, all work-related injuries requiring medical treatment should be reported to Ontario's WSIB to avoid employers transferring the cost of treating workplace injuries onto the public health-care system.

The study finds that 35% to 40% of ER visits for workplace injuries were not reported to the WSIB from 2004 to 2017. This is broadly consistent with other data on under-reporting, which finds 40% to 60% of work-related injuries are not reported. 

Of the cases reported by health care professionals, 15% are not followed by workers (who should file a worker report). Further, there was a big drop in reporting beginning in 2008.

This study further demonstrates that workers' compensation injury data underreports the true level of workplace injury, even in the case of serious injuries. This raises questions about the utility of this data to assess and guide injury-prevention work. It also suggests significant cost-shifting around injury from employers to other groups (e.g., taxpayers, workers, private health benefit providers). 

Finally, this study suggests a useful way to begin correcting for under-reporting. For example, workers' compensation board could begin more aggressively following up on medical reports that do not generate worker reports to ensure these injuries are captured.

-- Bob Barnetson

2019 workplace injuries and fatalities report

Sean Tucker and Anya Keefe from the University of Regina have released their annual roll up of Canadian workplace injuries and fatalities using 2019 data. Note that this data is for the pre-COVID period, although there is some preliminary 2020 COVID-claims data included in a separate section.

The nub of the story for Alberta in 2019 (again, pre-COVID) is:

• Alberta continues to have among the highest per capita injury-related occupational fatality rate, which jumped 9% in 2019 over the previous three-year average. 
• Alberta also has the highest absolute number of injury-related fatalities despite having only about 10% of Canada’s population. 
• Alberta has the third highest absolute number of disease-related fatalities. 
• Alberta’s lost-time claim rate also jumped 11% in 2019 when compared the previous three-year average (the biggest jump in Canada)

Oddly, Alberta just announced changes to its OHS legislation (effective December 1) to weaken its already ineffective injury- and fatality-prevention system. The Alberta data in graphical form is below.

Nationally, there were about 39 accepted COVID-related fatalities and 32,742 accepted COVID-related lost-time claims in 2020. Here is a provincial breakdown.


It is not possible to draw conclusions from this snapshot but tracking and explaining the differences (when you control for population and perhaps the timing of the waves) in accepted cases in BC, AB, ON and QC would be an interesting project.

-- Bob Barnetson

New data on injury under-reporting, claims suppression, and risk in small workplaces

Some new research updates have been published by the Institute for Work and Health. A study in BC looked at injury claiming behaviour. It found that approximately half of workers who have a work-related injury or illness that requires time away from work do not report the injury to the BC workers’ compensation system. Key explanations include workers not knowing they are entitled or how to apply or not thinking it is worth their time to do so. Further, between 4 and 13% of people with work-related injuries experience inducements or pressure from their employer not to report the injury.

You can read the full report here and a shorter policy briefing here. This table (nicked from the policy briefing) summarizes the recent evidence on underclaiming and suppression in workers' compensation claims.


The key take-aways are that there is pretty consistent evidence that only half of injured workers report injuries to the workers compensation system. That is to say, workers’ compensation data (which is basically what we use in Canada to assess injury rates and drive public policy) consistently and significantly under-estimates the true level of injury. Further, one of the factors that drives under-reporting by workers is employer claims suppression behaviour.

Interestingly, claim suppression is not the most common cause of under-reporting in the BC study. Workers not knowing to or how to report was a significant factor. This is followed by workers not thinking it was worth their while to do so (in part because some employers offer alternative forms of injury compensation).

A second study investigated the reasons underlying higher risk of injury to workers at small firms. The upshot of this study was that inadequate safety policies and procedures at smaller firms were the major source of higher injury rates. When this variable was controlled for, differences disappeared. This suggests that smaller workplaces are not intrinsically less safe and the greater risk of injury can be attenuated by improved organizational processes

-- Bob Barnetson

Working conditions in meat plants

John Oliver recently did an interesting piece on working conditions in meat-packing plants. These working conditions are broadly similar to those in Alberta plants.

These conditions are an important factor in the repeated outbreaks of COVID at these plants. Close proximity, relentless pace, and no breaks are pretty common. Workers get injured often and seriously and receive inadequate medical care. Many workers are vulnerable workers, whose residency in the country may be at risk if they get fire. Others have few options for comparable jobs.

 

Alberta’s response to COVID outbreaks in meatpacking plants have basically been ineffective (kind of like Alberta’s broader response to COVID). Which is why we’ve seen outbreaks in plants High River, Calgary, Red Deer, and Brooks. The High River outbreak was one of the largest outbreaks in Canada. Workers and their family members have died. There has been community spread due to ineffective workplace controls.

 

-- Bob Barnetson

 

 

Justice delayed and ultimately denied in worker's death

One of the things labour practitioners talk a lot about is the power of delay, and how employers weaponize it against workers.

When an employer breaks a contract, workers are often stuck living with the consequences until they can get a ruling from a tribunal, court, or arbitrator. This “work now, grieve later” dynamic gives employers an immense amount of power and renders many worker righst effectively moot.

Similarly, when a workers’ compensation board denies a worker’s claim or cut the worker off from compensation, the worker must often make do until an appeal can be heard—often years later. In the meantime, kids go hungry, marriages break up, houses get repossessed.

On the OHS side, while workers can refuse unsafe worker, they often won’t because they think it won’t do any good. Among the reasons workers think this are examples of the state delaying attaching sanction to employer violations of the law. For example, in Alberta, it is rare for the state to lay charges following a death or serious injury until just before the two-year prosecution window closes. Then the prosecution starts, with all of the attendant delays of court proceedings.

Two weeks back, CBC broke a story about an abandoned OHS prosecution. Twenty-one-year-old Martina Levick was killed in June of 2017. She was the public works foreperson for the village of Dewberry. She died when a riding lawnmower she was trying to fix fell on her. Levick’s death was one of 26 fatalities Alberta’s OHS officers investigated that year, but the report is not available on the government website.

Two years after Levick’s death, the government filed charges against the Village of Dewberry. The charges alleged 7 counts of violations of the OHS Act. Court hearings kept getting put off. Eventually, the village applied for a stay of the charges. Alberta Justice has agreed to stay the charges. The village has been absorbed into the County of Vermilion River due to financial problems.

So what happened here is that a worker was killed, likely because the employer was operating unsafely. The delay in filing the charges (which is a systemic OHS problem) coupled with the legal wrangling means that there are essentially no consequences for anyone (except the worker and her family).

This sort of systemic failure of OHS to protect workers and punish negligent employers contributes to workers’ skepticism about the efficacy of contacting the government to enforce their rights. And this dynamics enables employers to let unsafe workplaces slide: they know that there is little chance they will be caught violating the rules and, even if they are, there will be few consequences.

-- Bob Barnetson