Progress on administrative penalties

The government will be introducing amendments the Occupational Health and Safety Code during the fall sitting of the legislature that (if passed and enacted) will permit cabinet to create regulations allowing OHS officers to issue administrative penalties.

This is the first step towards actually implementing fines for OHS violations, which is promised in 2013. The real question is what will the administrative penalties look like (i.e., who gets fined how much for what infractions) and whether OHS officers will use them.

-- Bob Barnetson

CEP wins Suncor drug-testing injunction

There have been some developments in the random drug-testing dispute between CPE and Suncor. Last Friday, CEP got an injunction at the Court of Queen’s Bench to delay implementation of random drug testing of employees until the matter was heard by an arbitrator. On Wednesday, Suncor was before the Court of Appeal, trying to get the QB injunction overturned. 

I’ve had a fair number of questions about this dispute (basically: “what is the law?”). In random workplace drug-testing, there are two principles in conflict: workplace safety and employee privacy. Suncor’s argument on Wednesday continued to focus on safety:

“Every day that passes, the risk increases,” said Suncor lawyer Tom Wakeling. “The Suncor workplace is inherently a dangerous space. The consequences of mistakes in this hazardous environment may include catastrophes.” Wakeling said an injury or death in the absence of the program could cause irreparable harm to Suncor, which he said should trump privacy matters and other concerns the workers have.

Sometimes the safety argument justifies the violation of worker privacy that drug testing entails. For example, if a worker appears impaired on the job, then testing that worker might well be justified. But it is not always this clear.

For example, many employers want to drug test workers whenever there is an injury. If the injury was caused by a mechanical malfunction (e.g., a chain breaks) then testing wouldn’t be appropriate as impairment was not the cause of the injury. On the other hand, if the injury was caused by an error in worker judgment, then post-incident testing might well be warranted to rule out impairment as a cause.

CEP’s argument is that random testing is an unjustifiable violation of worker privacy. For example, there is no probable cause for random testing. If a cop wants to look in your trunk, she needs probable cause. Under Suncor’s random testing policy, no probable cause is needed. It seems strange to argue that a company ought to have greater search-and-seizure powers than the police.

The testing itself (as evidenced by two affidavits) is demeaning: basically you get to strip off your outer work clothes (which means you can be standing there in your undies) so you’re not hiding any clean urine on you and someone watches you pee into a tamper-proof toilet (there is a half-height screen). Among the stories I heard this week (not necessarily all from Suncor) include a menstruating woman’s experience with pee-testing and the story of a fellow whom, for religious reasons, had never been naked in the presence of another guy and was forced to drop trow and take a leak. What these stories tell us is that a pee-test can be very invasive and psychologically damaging. Given that there is no evidence random-drug testing reduces injury rates, can such an invasion of privacy really be justified?

Further, the Suncor policy is overly broad because it does not distinguish between drug-related injury and safety issues among its employees and its contractors. CEP represents the employees, most of whom are long-term (sometimes even second-generation) Suncor employees who live in Fort McMurray and (the union asserts) don’t have any unusual drug or alcohol issues. The problematic workforce appear to be contractor employees (transient workers who live in camps). Suncor’s approach treats all of the employees as if they are equally at risk of drug-related incidents.

An interesting implication of this assertion is that the energy and construction industries themselves are partly to blame for any drug-fueled injuries. Companies have chosen to rapidly expand their workforce and hire transient workers. They then pay them big money (which they nothing to spend it on), work them long hours (12-hours shifts) for weeks at a time and house them in isolated work camps. It is not surprising that many of these workers will use mind-altering substances, like pot. The companies’ response has been to test and discipline for dope. Consequently, workers move on from dope to other drugs that are harder to test for—like meth, cocaine and crack.

Finally, the consequences of a false positive (which is more common than you’d think) can be devastating. Even workers who are cleared in the end, wind up stigmatized by the false positive. The arguments and outcome of the arbitration ought to be quite interesting.

-- Bob Barnetson

Commentary on federal union "transparency" bill

The National Post carried an interesting opinion piece addressing the federal government's efforts to make unions "more transparent". The background is that the feds want unions to disclose lots of information because unions (via their members) receive a public benefit (union dues are tax deductible).

The authors of the opinion piece suggest, if that is the principle behind the bill, then the bill should go much further and also require corporations to disclose information (as they get all manner of public benefits). That the Tory's bill does not do so, suggests this is more of an attack on unions than a principled approach to transparency.

-- Bob Barnetson

Anti-privatization tactics in seniors' care

Alberta’s government has been slowly privatizing long-term seniors’ care. This includes allowing private operators to run homes as well as contracting out services within public-sector seniors’ homes.

AUPE (the Alberta Union of Provincial Employees, representing workers in both public- and private-sector seniors homes) has responded to this in several ways. More traditionally, AUPE has pursued better wages in private-sector homes via a series of labour disputes. In effect, they are attempting to take wages out of competition and make privatization less attractive to the government. As part of this bargaining strategy, the union has characterized the operators as ripping off the taxpayers—in effect casting itself as protecting the public interest. 

More creatively, AUPE has backed a documentary about the terrible food being offered to seniors in public-sector lodges after food preparation was contracted out, centralized and turned into a reheat-and-eat approach. The documentary addressed both the palatability and health-effects of this change. It is a pretty disturbing documentary to view.

A representative comment from a viewer is:

I'd love to lock up all 61 Tory MLA's in the Legislature and feed them this menu. I wonder how long they would tolerate it for themselves. I'd serve it to them for free! I wonder which scum-sucking conservative(s) is(are) benefitting from ripping off seniors in Alberta.

Yikes.The government was eventually embarrassed into reversing this form of contracting out and home-cooked meals will return to seniors lodges as of December, 2012.  There are lots of unique factors at play in this particular instance. But it and the www.stoptheripoff.com campaign illustrate the potential of publically embarrassing employers and the state into doing the right thing. Things which also yield outcomes beneficial to workers, such as preventing layoffs and avoiding two-tiered wage structures.

-- Bob  Barnetson

Priest guilty of foreign worker scam

CBC is reporting that two Albertans have pleaded guilty to illegally bringing approximately 60 temporary foreign workers into Canada.  This case dates back to 2004 and includes an Orthodox priest, his wife and a college employee (which sounds like the start of a bad joke…).

Basically, a group of Polish tradesmen (most of whom don’t speak English) were recruited to come to Canada by a company co-owned by a (then) St. Paul Orthodox Priest. The workers thought they were coming to work but arrived on student visas, allegedly to attend Lakeland College for ESL and welding training. Instead, they were put to work. By skimming their pay, the employer made over $1m in less than two years (one source suggests the company profits $1m in six months).

After getting busted in 2006, the employer eventually pleaded guilty with a fine of $215k (so less than 20% of the profit from the scam). The fine went to Lakeland College. It appears that a former employee of Lakeland College facilitated the scam by issuing letters to support the visa application. So, in effect, the College is profiting from its former employee’s wrongdoing.

It is unclear from the story if the workers ever got their proper pay. A 2011 CBC story reported the workers were suing the priest and his company for $5.5m. It also reported: 

The workers were forced to sign a contract which stipulated that, if breached, would result in a fine of $25,000 and/or deportation from Canada, said police. They were also allegedly instructed to not to discuss their wages or the arrangements of how they came to be in Canada.

CBC also reported:

Lipinski is countersuing the workers for $10 million, accusing them of concocting a conspiracy in order to be allowed to stay in Canada and besmirching the reputation of his company in the process.

It is not clear the status of either suit. Interestingly, the RCMP notes that this is the first conviction under the Immigration Refuge Protection Act in Alberta but that “”we're seeing this more and more in Alberta."

-- Bob Barnetson

Conference on criminalizing OHS violations

This May marked the 20^th anniversary of the Westray Mine disaster, where 26 workers were killed as a result of dangerous and illegal working conditions.  One of the outcomes of the Westray deaths were amendments to the Criminal Code to allow for prosecution of companies for worker’s deaths. Steve Bittle (UOttawa) recently released a book addressing criminal liability for OHS after Westray.

A conference will be held at the University of Ottawa on October 24-25 to discuss the enforcement of criminal laws regarding occupational health and safety. The program for the event is available here.  The conference will be live-streamed here.

Several artists have written songs about the Westray disaster. One of the more poignant mining disaster ballads is (believe it or not) from the Bee Gees. Their first hit was New York Mining Disaster 1941 (inspired by the 1966 Aberfan mining disaster in Wales).

-- Bob Barnetson

Guilty pleas in 2007 CNRL tank collapse

More than five years after two workers were killed in a 2007 tank collapse on the CNRL Horizon site near Fort McMurray, the Edmonton Journal is reporting that SSEC Canada Ltd. (a Canadian Subsidiary to China's Sinopec) has pleaded guilty to three charges under the OHS Act.

The delay in proceeding reflects, in part, court proceedings where SSEC argued it had not been properly served. Eventually this was resolved by the Court of Appeal, the Supreme Court declined to hear the case, and prosecution proceeded.

During the investigation of these deaths, the government also discovered SSEC had short-changed about 132 foreign workers about $3.17m in wages, overtime pay and holiday pay (meaning workers got about 10% of the pay they were due). As far as it is possible to tell, SSEC had signing authority on the workers' accounts, put the cash in (to create a paper trail showing payment) and then scooped it back out. The union that was supposed to protecting these workers (the Christian Labour Association of Canada) was forced to go to China to ensure one widow received payment of death benefits.

CNRL fronted the cash SSEC should have paid these workers but the wages remain unpaid, in part because the Chinese government (which owns Sinopac, which owns SSEC) says the workers got paid (cough, cough) and refuses to give the workers the money. So the province gave the cash back to CNRL.

Anyhow, sentencing will occur in January. The crown says it is seeking $500k maximum per charge. It it is likely the guilty plea will include creative sentencing.

-- Bob Barnetson