Senior's death ends strike in nursing home

The government has appointed a Public Emergency Tribunal (PET) to resolve the seniors care strike at the Revera Riverbend extended care facility that has run more than 70 days. This strike is part of a series of job actions by the Alberta Union of Provincial Employees (AUPE) to get private seniors care providers to match wages offered by public providers.

The unfortunately termed “PET” can be created by the government under ss.112 and 113 of the Labour Relations Code when a strike or a lockout causes health services to be reduced (or ceased) or causes unreasonable hardship to persons not party to the dispute. The strike or lockout ends and the dispute is resolved through arbitration.

PETs are unusual, in part because the government got slapped pretty hard by the court in 2002 when it used one inappropriately to end a teacher strike. In this case, there are reports that replacement workers refused to call 911 for a resident who claimed to be having a stroke, the resident eventually went to hospital (after a 911 call by a relative of another resident) and died.

The government doesn’t mention this incident in its press release—not surprising given the heat it has taken for other deaths in care that have happened on its watch. Rather, it asserts that weekly monitoring by Alberta Health Services identified “a number of deficiencies in the care of the 120 residents.” I

Deputy Premier Thomas Lukaszuk specifically denies any relationship between the death and the PET:

Deputy Premier Thomas Lukaszuk said the province decided in intervene after an inspection on Aug. 8th found deterioration in the quality of care, particularly in charting and medication, which he attributed to a high turnover of replacement workers. 

The strike wasn't ended until Tuesday because province needed to follow a legal process under the labour code. 

"This is the earliest that we ... could have done so," Lukaszuk said. 

Lukaszuk said the woman's death was not the reason the province decided to step in.
"A review of quality of care to that particular patient has been done and we are satisifed that that this strike had no impact on this particular client," he said.

This statement is a bit hard to believe. All that is required for a PET is an Order in Council. If there was an emergency (with charting and medication errors being very serious) uncovered on August the 8th (last Wednesday), surely a cabinet meeting could (and should) have been held before yesterday to address the situation.

Under the PET, the parties have 21 days to negotiate a solution (with a mediator’s help) or a government-appointed arbitrator will determine the final settlement. AUPE has recently settled two other strikes at long-term care facilities and received significant concessions from employers. You can view the Order in Council here.

-- Bob Barnetson

Liberals narc out Alberta child labour to Pepsi

Alberta Liberal MLA David Swann recent wrote a letter to PepsiCo asking it to honor its corporate code of ethics and stop buying potatoes from Alberta for its line of chips. Pepsi's ethical code prohibits suppliers form using child labourers and many Alberta farms do just that.

Swann's argument is that child agricultural labour in Alberta is effectively unregulated. This is true. About the only thing that might apply is child welfare laws. But who would report abuse? The children? Typically they are working for their parents. Are 12-year-olds really going to narc out mommy and daddy? Or even realize they are being endangered?

Swann then "promises" to pursue this issue publicly in the months to come. Y read on this is it is a very gentle threat that he's going to name some big companies that buy products grown with child labour. That should make for some good headlines!

-- Bob Barnetson

Abusing medical leave

Howard Levitt is an employment lawyer who writes for the Financial Post. He tends to favour the employer’s perspective in workplace disputes. While I normally just dismiss what he writes, his latest column is an interesting example of worker blaming.

The gist is that workers use doctors’ notes for time off due to stress frequently, illegitimately and as a way to get back at their employer. While there are likely some folks who abuse the right to time off due to injury, Levitt offers no evidence or even a guess as to how frequently this occurs. Rather, we are treated to this polemic:

Too many doctors hand out medical notes as freely as if they were toilet paper.

Really, what do these doctors even know? They are GPs, not psychiatrists or occupational health specialists. They seldom conduct independent psychiatric tests to ascertain whether their patients are genuinely so stressed as to be disabled from performing any work.

Often its a scam. An employee has a workplace dispute, decides that he or she doesn't want to work and goes to their family doctor, or more frequently, a clinic, to obtain a note. Those notes usually say little more than "Off work for seven days for medical reasons" or something equally nondescriptive.

What research there is on malingering while on workers’ compensation (a similar phenomenon) suggests that rate is very low. In part, this is because the motive (termed secondary gain) for scamming the system is largely offset by the secondary losses associated with being away from work while injured or sick (e.g., loss of reputation, risk of termination, harassment upon return). Interestingly, fraud by employers is much more common (cough, cough).

Odd that a lawyer would fail to provide any real evidence to substantiate his allegations. About the only evidence Levitt musters is: “I have had a rash of recent cases, across Canada, with the same issue”.

Ah, anecdotal evidence, you slippery minx. Sometimes anecdotal evidence is quite useful—if used as part of a careful methodology. Yet most of the time, anecdotal information is misleading. Anecdotes tend to be examples of the unusual (otherwise we wouldn’t bother remembering or retelling them).

That is to say, Levitt’s experience likely isn’t representative of what happens in workplaces across the country. Rather, he is likely seeing a few egregious cases that employers have decided to bring to his firm for attention. He then extrapolates from these as if they are representative of the 20 million-odd Canadians who work.

Interestingly, the comments that follow Levitt’s article (which usually represent a fairly hawkish view of employment) almost universally reject his position. They also raise some good questions. Why are workers so stressed? Why don’t employers reduce stress levels? Why do workers feel compelled to go to a doctor instead of seeking a workplace accommodation?

-- Bob Barnetson

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