Second Canada Post arbitrator tossed by courts

CBC is reporting that the federal court has ordered a second arbitrator in the Canada Post dispute to step down. The arbitrator was appointed to the federal government as part of back-to-work legislation enacted last year.

  

The first arbitrator was tossed after it turned out he wasn’t bilingual and had little labour relations expertise. The second arbitrator was tossed because he acted as a prosecutor for the employer during a pay equity dispute (1998-2003) and had long-standing ties to the Conservative Party, including being president of the Quebec wing and running as a candidate. This creates the appearance (if not the fact) of bias, thereby undermining the notion of neutral, third-party arbitration.

Appointing arbitrators who are unqualified and/or create the appearance of bias brings further disrepute upon the federal government’s aggressively anti-union approach to labour relations. While I’m no great fan of the court system when it comes to protecting the rights of workers, I am interested to see what the long-term effect of such pro-employer government policy has on the jurisprudence.

Specifically, I wonder whether pro-employer policies will make the court system (and particularly the Supreme Court) more sympathetic to the arguments of labour and, perhaps, result in a further expansion of the freedom of association duties of the state under the Charter?

-- Bob Barnetson

UFCW scholarships

The United Food and Commercial Workers (UFCW) is offering 18 x $1000 Scholarships for UFCW Canada members and their families.

All eligible applicants are encouraged to apply for the UFCW Canada Beggs—Dowling—Mathieu Scholarship online.

-- Bob Barnetson

US drops additional regulation for child farm workers

MSNBC is reporting that the US government has dropped plans to further regulate child labour on US farms. The abandoned proposal would have made it made it illegal for paid workers under 16 to use powered equipment and for paid workers under 18 to work in silos, feedlots and grain elevators. These restrictions would not have applied to child worker on their parents' farm.

Intense opposition from the farm lobby stopped the proposal and the Obama administration has indicated it will not re-open the issue. Currently, children working on farms are four times more likely to die on the job than children working in all other industries combined.

-- Bob Barnetson

Government appoints DIB in senior care strike

The government has appointed a dispute resolution tribunal (DIB) which makes a non-binding recommendation to forestall another strike in Alberta's private senior care facilities. A DIB appointed in a different (but basically identical) dispute between the two parties yielded a recommendation for the employer to pay more (as did a mediator report) and the employer declined. The newest DIB appears likely to run a similar course.

The government's rationale for the DIB is that patient care was in jeopardy. AUPE (representing the workers) has noted in a sharp letter to the premier that the proper legislative mechanism to use if public safety is threatened is a PET (public emergency tribunal) which could issue a binding settlement. The government may be shy of PETs after the 2002 teacher strike where the courts threw out the PET because it was being used to solve a political (rather than an actual) emergency (obviously I'm paraphrasing the court--I'm on vacation and too lazy to look up the chief justice's actual words).

I can't imagine that is a real issue here--there is (apparently) an emergency. Unless there isn't an emergency. But then why would the government intervene with a DIB if there is no emergency and there are zero prospects of a settlement?

Further, it seems strange the government would (1) use the wrong legislative mechanism in a way (2) that is likely to be ineffective to (3) basically stall a strike. Unless the government is trying to pull the private-sector employer's ass out of the fire, a fire caused by the employer paying substandard wages. Ah, the myth of the neutral state in labour relations.

-- Bob Barnetson

Rona Ambrose supports trade unions?

I start my vacation at the end of this week so the blog will slow during July. But just in time for one last post is a bizarre tweet from Rona Ambrose (federal Minister of Public Works and Government Services and Minister for Status of Women) last night:

Rona Ambrose ‏@MinRonaAmbrose@lornepw I want unions to step up and support women who work in low wage and part time jobs that need their representation.

Now I’m all for unions seeking to represent vulnerable and often-exploited workers. But I have some difficulty buying this sentiment from a minister in a government that has gone out of its way to weaken the labour movement by interfering with collective bargaining on behalf of employers for the past year.

This seems to be related somehow (and I admit I find it hard to hard to follow everything on Twitter) to a conversation about Andrew Coyne’s article in the National Post yesterday cheerleading an Ontario Tory white paper that advocates ending the Rand formula.

The Rand formula allows unions to collect dues from every worker in a bargaining unit, even if a worker is not a union member. This formula prevents free-riding, whereby workers could not pay union dues but still receive the benefits of union contracts. The Rand formula differs from a closed shop, where membership is required; under Rand, you only need pay dues, not be a member.

Also in this white paper is the notion that workers’ compensation could be partly privatized in some industries. This is simply a wacka-doodle suggestion. I’ve covered this topic in my book (starting on page 161). 

Privatization can mean a lot of different things. But the basic arguments against privatizing workers’ compensation is that there is almost no evidence that it saves anyone any money (i.e., it is not more efficient) and doing so pressurizes insurers to grind the compensation of injured workers (compensating injured workers being the notional purpose of workers’ comp…).

The only group that wins when workers’ compensation is privatized are insurance companies who can now access a whole new market.

-- Bob Barnetson

Deadbeat employer website now up

The Government of Alberta has set up a website identifying deadbeat employers—those who owe workers wages. There are about 1700 employers listed on the website and they collectively owe 3500 workers nearly $14 million. 

Publically embarrassing employers for breaking the law is an excellent (and cost-effective) enforcement tactic. That said, Alberta’s first stab at this does not go far enough because it only shows employers who owe wages (the deadbeat employers).

It doesn’t tell us which employers shorted workers wages but then paid up when they got busted. And it doesn’t tell us which employers made workers work too many days in a row or hired children illegally.

In that way, this website doesn’t do anything about the real problem facing employment standards—which is there is no disincentive for breaking the law. In fact, the reverse is true. Employers have an incentive to break the law—which is saving some money—because the worst consequence they face is having to pay what they should have paid in the first place.

There are several ways this effort could be improved. The government could name every employer who violates any part of the employment standards code each month and tell us what they did. That creates an immediate and embarrassing consequence for the employer. Just telling us who the deadbeats are doesn’t help—these employers clearly don’t care one way or the other and may not even be in business any more (as the list goes back 10 years).

A second solution is fining employers for violating the law. That creates an actual incentive for employers to comply with the law because they’ll be financially punished when they break it.

A third solution is increasing the number of random inspections each year. Right now, employment standards is mostly complaint-driven. Complaint-driven systems basically don’t work. A US study found 130 overtime pay violations for every complaint filed-- some industries have up to 800 violations per complaint. We see similar rates of non-reporting in other Canadian jurisdictions.

By contrast, random inspections unearth all manner of non-compliance and ensure that the law is actually followed. Right now we see a small number of random inspections. Under a 1000 a year is the number I’ve heard, but I can’t substantiate that anywhere because the government doesn’t disclose that information. With 140,000 employers and over 2 million workers, there is basically no chance of an employer getting caught breaking the law and no real penalty if they do get caught.

Along with the deadbeat employer website, the government has rolled out a series of new videos about how to comply with employment standards. Education is nice and all, but bundling the deadbeat website together with education frames violations as rooted in ignorance. This is a nice storyline for a pro-employer government and is likely necessary to get buy in from the Minister and caucus. But it obscures that employer greed is also a factor in violations—a big factor.

Consider SSEC Canada Inc., a subsidiary of a Chinese company. It owes about $3.5m to a variety of Chinese nationals who were brought to Alberta to work in 2009. The government discovered this money was owed when it was investigating a pair of fatalities in Fort McMurray. And the employer clearly bilked its workers out of their pay—pay the government hasn’t collected and (in the Legislature) admitted it will likely never collect. 

Education can’t remedy that. Only penalizing employers for violating the law can.

-- Bob Barnetson

Farm Workers' Union makes interesting argument

I’m reading a new book about the Fraser case (farm worker organizing) by Fay Faraday, Judy Fudge and Eric Tucker and quite enjoying it. Perhaps a quick run down will follow as I get further into the book.cCoincidentally, I got an email from the Alberta Farm Workers' Union (FWU) on Friday. 

They note that Bill C-45 (the Westray amendment to the Criminal Code) is slowly (very slowly) becoming more widely known and (gasp!) used in Canada to prosecute employers for worker fatalities. Indeed, a construction company in Ontario has just pleaded guilty to one charge of criminal negligence causing the death of four workers who died on Christmas Eve, 2009. At the same time, the President of the company pleaded guilty to four charges. Sentencing is still underway but the dollar values are much higher than in previous cases. 

But back to the FWU’s press release. The crux of their message is that, because most farms and ranches are excluded from the ambit of the Occupational Health and Safety Act, these employers are more likely to face charges under the Criminal Code for worker deaths than employers who are covered by the OSHA (who are typically prosecuted under its provisions in Alberta). Similarly, most farms operate without the liability shield that (presently optional) workers’ compensation coverage would give them thus they may face civil suits for farm workers deaths.

The FWU goes on to suggest that it is in the interests of farmers to work with the government towards the inclusion of farms and ranches in the OHSA to reduce the risks associated with criminal prosecution. The FWU also appears to be suggesting that farmers cooperate with efforts to extend mandatory WCB coverage to farms to reduce the risk of civil suits for injuries.

This press release is fascinating on three levels.

First, the argument put forward by the FWU is more savvy than their previous efforts. They are attempting to lessen resistance among rural communities to extending basic workplace rights to farm workers by making an economic argument farmers may agree with. The timing is good, because (1) the premier appears to be progressive and not as tightly wed to the old boy network in Alberta (although time will tell) and (2) the policy salience of the rural vote just declined because so much of the south went Wild Rose in the recent election. So good on the FWU.

Second, the FWU’s argument is basically that a farmer should seek to hide from a big Criminal Code fine for killing a worker by locking into the low-fine/no-prosecution regime of the OHSA. That is to say, Alberta’s OHS record suggests it is cheaper to kill workers under it than under the Criminal Code.

Wow, what an argument. 

It is not often a labour group adopts such a blunt cost-benefit analysis when discussing worker fatalities. This is not to say the FWU is wrong—the financial risks associated with OHSA prosecutions are very small while the risks under the Criminal Code are basically unknown in Alberta. Compounded with the risks associated with a civil suit, and coverage under workers’ compensation and OHS starts to look pretty good if you are risk-averse. But wow, what an argument.

Third, the FWU is suggesting that prosecution under the Criminal Code is a real possibility in Alberta.

“(Bill C-45) has now arrived in Alberta. The Alberta Federation of Labour has written an open letter to Alberta's Justice Minister, the Honourable Jonathan Denis advising of the existence of this law. I had an opportunity May 30 2012 to sit down with Alberta's Justice Minister in his office and discuss at length and in some detail C-45 and it's impact on the Alberta Ag industry. The Minister of Justice then was asked on the floor of the House during QP about C-45 and the Alberta Ag industry and he stated " Let me assure this House that my ministry doesn't hesitate to pursue criminal charges where the investigation indicates that it is warranted" (Hansard May 31 2012 pg 127)”

On the one hand, it is nice to see the Minister of Justice agreeing that prosecution in an option when warranted. On the other hand, the history of prosecutions for workplace deaths in Alberta is pretty dismal with few prosecutions compared to other jurisdictions. 

Is it realistic to expect Alberta will suddenly start prosecuting under a 2004 amendment to the Criminal Code when they’ve show little appetite to prosecute under the OHSA all these years?

-- Bob Barnetson