Refusing unsafe work in Alberta

When workers refuse unsafe work in Alberta, the Occupational Health and Safety Act first requires the employer to investigate. The worker can then appeal to an OHS officer and, ultimately to the OHS Council. I don’t have any stats on refusals in Alberta, but my sense is that they are rare and appeals to the OHS Council are rarer. For that reason, decisions by the Council on right to refuse disputes make interesting reading. I don’t believe this decision is posted yet but you can often find them here. 

An April 10, 2013 decision examines a January 2011 refusal of unsafe work by nurses in Grande Prairie for which they were disciplined by Alberta Health Services (looks like a suspension and letter of reprimand—a bit hard to tell). For those from out of province, Alberta’s OHS Act requires workers to refuse unsafe work, rather than simply giving them the right to do so. Workers who fail to refuse can be punished under the OHS Act with fines up to $500k or 6 months in the clink for a first offense!

The facts are that the patient was “certified” under the Mental Health Act and had previous injured security staff during a January 12 visit (while being taken down). The door to the “seclusion room” was apparently “kicked out” by the patient during a January 15 visit (he would have escaped if nurses hadn’t braced the door against him with their bodies) and he threatened to kill the staff. Further, the emergency button to summon help was not well located. The security guards had inconsistent training and abilities to subdue the patients. And there were also no restraints in use or places to lock the restraints to.

The upshot is that the nurses were concerned the patient posed a danger to other patients in the wing as well as to themselves. So, they hustled all of the other patients out of harm’s way, continued to nurse them, and refused to work with the patient they deemed to be a threat.

The Council determined that the employer did not assign additional security personnel immediately or consistently. The employer also failed to make the required written record and provide it to the nurses. Indeed, there was no policy on work refusals. The supervisor had no advice for the nurses about how to handle the patient and threatened to report one of them to her professional association if the nurse refused unsafe work.  Eventually, the employer sedated the patient, added three (or four or five, depending on who you believe) security staff, and transferred the patient out of the facility.

The discipline apparently flowed from a continued refusal to work because the employer had not followed through on its legislated requirements to investigate and inform the employees about what the employer did to control the hazard (I’m paraphrasing a bit). Basically, the workers couldn’t be sure the work was safe because the employer pooched the investigation so they continued to refuse and got disciplined for it.

The OHS Council overturned the discipline (two years later). This decision shows us several things:

1. Even employers with sophisticated OHS capacity can have unsafe workplaces, fail to take effective action on serious workplace hazards, and persecute workers facing imminent danger. Alberta Health Services (AHS) is the largest employer in Alberta. If AHS cocks things up so badly, what kind of OHS infrastructure can we expect the 56% of Alberta employers with fewer than 5 workers have?
2. Workers who exercise their right to refuse (action the OHS Act compels them to take under threat of imprisonment) can face discipline from their employer for complying with the law. Non-unionized workers would be unlikely to have the resources necessary to fight their employer. How effective can we expect OHS Act to be if basic safety rights are disrespected by the employer and the officer’s investigation is in error?
3. At one point, the employer argues that the conditions faced by the nurses were normal aspects of their employment as psych nurses thus they had no right to refuse. There is some superficial truth to this—psych patients can be a handful. Yet can the purpose of the OHS Act possibly be to compel these workers to perform duties while being threatened with death by a mental patient with a pattern of violence in a workplace with no reasonable security precautions? Obviously not.

An interesting example of why worker safety rights, while important, are weak rights. They are hard and dangerous for workers to exercise, which means workers will often trade off their safety against the spectre of punishment by the employer.

-- Bob Barnetson

The lessons of Alberta's jail-guard strike

It has been a fairly interesting week in Alberta labour relations, with prison guards staging an illegal strike over unsafe working conditions. The lesson of this strike is that employers usually get the union that they deserve. For example:

• If an employer is unresponsive to serious concerns about workplace health and safety, this will tend to (further) drive workers together because workers realize they can only rely upon one another.
• If an employer unjustly disciplines workers in such a heated environment, this can trigger job action, including a wildcat strike.
• If the employer acts in a high-handed and arrogant matter during the strike, other workers may join in and the strike can spread.

At present, the government is engaged in punitive post-strike action against the union (e.g., seeking dues suspension, costs for the strike) as well as apparently reneging on its agreement not to persecute workers involved.

There are a couple of potential explanations for this behaviour. The most rational reason (and this may be overly charitable) is that the government is seeking to increase the cost of illegal strikes to deter unions from staging them (reflecting that illegal strikes tend to be highly effective). This thinking reflects a profound misunderstanding about the internal dynamics of unions and this strike in particular. Absent egregious employer misbehaviour, union leaders are generally unable to trigger an illegal walkout. Workers aren’t mindless drones that the union manipulates. Generally (although not always) illegal strikes happen (often to the union’s surprise and dismay) in response to long-simmer problems and a catalyzing incident (both of which reflect employer decisions).

Further, once union members’ blood is up, it is often difficult or impossible for the union to control the illegal strike. Unions are political and democratic organizations and leaders must be responsive to the demands of their members (if they want to stay leaders). Smart union leaders try to ride and channel such action into something constructive (which is basically what the Alberta Union of Provincial Employees (AUPE) did). Given this dynamic, fines and punitive actions are unlikely to significantly affect the course of an illegal strike. AUPE president pretty much admitted this when he said: “Fines are the cost of doing business.”

A second (and certainly not mutually exclusive) explanation is that the government is lashing out after a week of damaging negative publicity. Setting aside that much of this was self inflicted (to paraphrase the president of the AFL, would you put a pyromaniac in charge of a forest fire?), the Tories are already in electoral trouble due to scandals and incompetence, with support eroding from both flanks. They are (quite rightly) concerned about the potential impact of further strikes—especially if any of the opposition parties can figure out a way to convert strike support into riding-tipping votes.

What the government ought to be more concerned about is that their “management” of the strike took the province very close to the precipice where the government looses control. Imagine, for a moment, that Deputy Premier Thomas Lukaszuk had continued to egg on AUPE members and the strike had gone on or expanded. Both were possibilities—something the government must have had an inking of since they sent a note to all employees saying (I’m paraphrasing) “this strike is illegal so simmer down”.

If contempt of court fines weren’t effective at ending the strike, at some point a judge would have gotten pissed off and ordered arrests of peaceful strikers—who also happened to be law-enforcement personnel. At this point, the government would have to face two questions: (1) would there have been a general strike, and (2) would police officers (most of whom are unionized) have balked at arresting fellow cops?

Let’s deal with the general-strike question first. This sounds a bit unlikely, given the general state of Alberta’s labour movement. But dig a little deeper. At the Alberta Federation of Labour (AFL) convention last weekend, a motion directing the AFL to plan for a general strike if right-to-work legislation was defeated, but by such a narrow margin that they actually had to do a vote count (I think it was 153 to 147). Basically half of the delegates were prepared to direct the AFL to trigger a province-wide strike about an issue that is a ways off. If provoked, I would think a general strike is quite possible—and that was the subtext of the AFL press conference yesterday deriding the government’s post-strike attacks on AUPE.

On the second question, I think it is likely that at least some police officers would have declined to arrest fellow cops who were peacefully protesting serious health and safety issues. And at that moment, the government’s control over the province would be lost. While government is powerful, it is in control only when (1) we all agree to go along with its decisions and (2) the government can compel dissents to comply. Widespread disobedience and no ability to compel compliance means there has effectively been a revolution (like the Ukraine’s orange revolution of a couple of years back).

Pushing the populace to the point when the legitimacy of government is imperiled or lost (and this was the direction things were going) just to look tough is massively irresponsible. Certainly it demonstrates fundamentally poor political judgment by the Deputy Pyro… errr… Premier. The complete absence of the Premier in such a situation is particularly troubling.

One would hope the government would have learned some lessons from the festivities of the past week. Yet the stories emerging from the remand centre, where the Deputy Minister apparently threatened discipline and termination of the strikers (despite government promises to the contrary) suggest otherwise. I don’t think any of the current crop of MLAs have any sense of what an ugly strike is like. Lukaszuk was about 15 when Gainers went down and the Premier maybe 20. Hopefully they don’t need to learn this lesson the hard way.

-- Bob Barnetson

The "rationale" for excluding Alberta farmworkers from basic safety rights

Alberta Views has recently published its annual labour issue. There are a couple of interesting articles:

• I have written about the various reasons that the government has advanced for denying farmworkers basic workplace rights.
• Diana Gibson has also written a piece about replacing the minimum wage with a living wage.

Both pieces are well worth a look-see.

-- Bob Barnetson

The end of public-sector collective bargaining in Alberta?

The blog Alberta Diaries has an interesting piece today about the end of public-sector collective bargaining in Alberta. Unlike other jurisdictions, where this entails legislation and protests, Alberta has quietly made the process of bargaining meaningless by issuing edicts to public-sector bodies. 

For example, Advanced Education Minister Thomas “cornflakes” Lukaszuk has written to each college, university and technical institute Board and told them to negotiate “annual percentage general wage changes over four years of not more than 0/0/0/2” and also to further cut salary costs by remedying “inefficiencies” incurrent agreements.

While Lukaszuk denies existing contracts must be opened, he does not deny that he expects Boards to comply with his edict. And, lo, the government-appointed Boards filled with Tory hacks are doing that exact thing. In bargaining with its faculty, Athabasca University has held firm to an opening position of 0/0/re-opener (which will likely be a zero) as well as cuts to merit increments and furlough days. These changes will transfer $3m from workers to the administration over two years and $23m over ten years. 

What this means is that, while post-secondary employees notionally are negotiating with their individual Boards of Governors (appointed by the government), these negotiations are meaningless because the government has predetermined the Boards' bargaining positions, both by constraining funding and by issuing a bargaining directive. This is akin to how teacher collective bargaining has been operating for a number of years.

The result of this interference in negotiations is that they are failing. Athabasca University and its faculty association are headed to arbitration because the Board is holding fast to an offer it admits that it can’t win at arbitration! In effect, the Minister has hollowed out the process of negotiation to the point where it is meaningless. This is impressive work for only being on the job for three months.

-- Bob Barnetson

Employee reward scheme reduces productivity?

I ran across an interesting study of employee award programs. Award programs are often thought to be a low-cost way to trigger additional worker productivity (e.g., increasing output, reducing waste, reducing injuries). The Dirty Laundry of Employee Award Programs: Evidence from the Field revealed two types of unintended consequences when a reward-scheme was implemented in an industrial laundry plant.

First, employees gamed the incentive scheme. Chronically tardy employees amended their behaviour just enough to avoid disqualification for the awards, but were still tardy. When ineligible for a reward, they reverted to their prior behaviour. And employees were more likely to call in sick (rather than be tardy) to retain their eligibility for attendance-based rewards. This behaviour is not really much different than the well known effect of “injury-free days” programs, whereby workers hide injuries to maintain their eligibility for the reward.

Second, employees with perfect attendance or high productivity saw a 6-8% decrease in productivity. Although there was no relationship between productivity and the rewards (which were attendance based), the reward system appears to have negatively affected the intrinsic motivation of high performers (likely due to perceptions of unfairness).

Overall, the scheme saw a 1.4% reduction in productivity. This effect meant that the costs of the program were not covered by improved performance and, in fact, the program degraded overall performance. So much for a low-cost motivational tool! This study raises some compelling questions, both about the validity of basic models of worker motivation and the utility of "common-sense" HR tools.

-- Bob Barnetson

Temporary foreign worker fiasco

In the wake of the Royal Bank scandal about displacing Canadian workers with foreign workers,  the AFL published some details about the accelerated temporary foreign worker program.

Between April 25 and December 18, 2012, more than 2,400 ALMO guest-worker permits – which are supposed to be reserved for highly-skilled employment – have been granted to fast-food restaurants, convenience stores and gas stations. ...

More than 54 per cent (2,640) of the ALMO approvals in the country were for Alberta-based employers. Of these, AFL researchers flagged more than 58 per cent (1,542) as questionable. The list of businesses in Alberta who received ALMO approvals included 33 A&W restaurants. 

 Rather than rant on, I will refer you to David Doorey's blog post on the topic.

-- Bob Barnetson

Skill shortage exaggerated?

The Bank on Montreal has released a report suggesting that the so-called skill shortage that the federal conservatives are using to justify skills training funding in their budget is exaggerated. Canada's unemployment rate is about 7%.  According to the CBC:

That's much lower than it was during the depths of the recession. But many private sector groups and some within the federal government warn that the number belies the reality of the job market, which is that there aren't enough qualified people to work badly needed jobs in the fast-growing resources sector. 

But a report from Bank of Montreal published late Tuesday questions that narrative, pointing out that only 25 per cent of companies polled in the Bank of Canada's latest business outlook survey reported a lack of qualified workers. That's actually 10 percentage points below the 15-year average of 35 per cent.

It is also 15% below results from 1999 and 2004/05 (the last time unemployment was at 7.0%). While the notion that the skills gap is not really that significant runs contrary to the rhetoric (and there may well be regional variations), this is consistent with the limited growth in wages (which should surge upwards in a skills shortage.

Rick Mercer has a nice piece about the skill shortage and the federal government's response.

-- Bob Barnetson