UNA staffers change bargaining agents

Two weeks ago, 45 staff members at the United Nurses of Alberta (UNA) voted to leave the Steelworkers Union and be represented by the Union of Labour Professionals (ULP), an independent union that the workers formed. The impetus for this change in representation was questions about whether being a part of Steel was the best fit and in the unit's best interests. There were concerns about autonomy and financial transparency, and the catalyzing event was Steel’s perceived interference with the operation of the bargaining unit during a dispute with the employer.

I’d originally planned to use this event as the jumping off point for a discussion about the tension between worker choice and union cartel behaviour and the politics of raiding. But the story itself also proved to be pretty interesting, providing insight into how unions can cause and respond to member dissatisfaction. So I decided to foreground the story.

Background

The Steelworkers represented what I’ll call the professional staff at UNA (as distinct from the clerical and administrative staff) by virtual of a voluntary recognition agreement between Steel and UNA. The skills of the bargaining-unit members (i.e., union staffers) means that the unit is mostly self-sufficient in terms of bargaining, grievances, and other membership servicing tasks. For the most part, then, the unit was left alone by Steel manage its internal affairs (which was sesible for the unit).

During COVID, UNA staffers began working from home. In mid-2021, when UNA called the staffers back to work in the office, the bargaining unit asked UNA to negotiate some flexibility and terms around working from home. UNA said “nope” and referred matters to the next round of bargaining (which was imminent). The workers never did go back to work in the office that year.

Later, bargaining started and, while the unit tried to negotiate some flexible-work language, once again UNA called the workers back to the office. Calling the workers back to the office, according to the bargaining unit, constituted a change in the terms and conditions of work during bargaining, something employers are prohibited from doing.

The bargaining unit filed an unfair labour practice complaint against UNA about this change during the “freeze period”, after telling Steel they were going to, and getting a provisional blessing. Subsequently, a different Steel representative decided the bargaining unit did not have the authority to file an unfair and ordered the bargaining unit to withdraw it. The bargaining unit basically said “yeah, no” and Steel reconsidered.

UNA’s response to the unfair questioned whether the bargaining unit had standing to file an unfair at the Labour Board. Steel’s submission also seemed to question the unit’s standing to file the unfair, which sat poorly with many members of the bargaining unit.

This interference in the unfair crystallized long-term dissatisfaction among many members of the bargaining unit and triggered an organizing drive to replace Steel with an independent union. (The acronym of the Union of Labour Professionals (ULP) is also a commonly used acronym for an unfair labour practice complaint.)

Selecting a Different Bargaining Agent

Alberta’s Labour Relations Code, like labour laws in all Canadian jurisdictions, allows unionized worker to periodically revisit their choice of which union will be their bargaining agent. During these “open periods”, workers can:

• take no action and thus remain represented by their existing union, 
• have a different union apply to be certified at their new bargaining agent (colloquially called a raid), or 
• file a revocation application to become a non-unionized group of workers. 

In Alberta, both raids and revocations both entail votes of the member of the bargaining unit, with the majority of voters determining the outcome.

The policy rationale underlying open periods is that they hold unions accountable to their members by giving the members the option to periodically revoke their consent to be represented by the union. This option backstops other union accountability mechanisms, such as union’s internal democratic structures (that workers can attempt to use to change union policy) and unions’ duties to fairly represent members during grievance handling.

Steel’s Reaction

When ULP filed a certification application with the Alberta Labour Relations Board, the Steelworkers took steps to try and retain the bargaining unit as a Steel unit. Additionally, some members circulated information to bargaining unit members about the effect of a decertification vote, including that the collective agreement with the employer would be terminated. This is a pretty typical tactic designed to highlight the costs of leaving the union.

This gambit ran into two problems:

1. this was a raid, wherein a new union would inherit the collective agreement, not a decertification, wherein the collective agreement is terminated, and
2. the members of the bargaining unit (i.e., union staffers) were savvy enough to know that. 

Steel then held two “decertification” meetings with the bargaining unit. Typically, a union will use these meetings to highlight both the reasons members might want to stay with them (e.g., access to a large strike fund) and the costs of leaving the union.

The accounts of the meeting I have is that Steel had no coherent presentation and said just wanted to learn about the concerns of the members. Given that a certification had been filed and a vote was likely, this seems like a mis-step: things were well beyond “tell us about your concerns”.

This approach also ceded the initiative to the bargaining unit members, who demanding to see financial statements related to their dues and policies around access to the strike fund. The answers provided by Steel were partial and unsatisfactory and further galvanized support for leaving.

It also opened the door to a member querying whether Steel would be raising objections to the certification application at the Labour Board or would let members democratically decide the matter. The framing of this question neatly backed Steel into a corner (i.e., agree to raise no objections or look anti-democratic) and, in the end, Steel agreed to not raise any objections.

The eventual vote was 29-13 in favour of leaving (about 69%) and the Labour Board recognized the ULP as the new bargaining agent. ULP then served notice on UNA to bargain (or continue bargaining from where Steel left off—that seems to be a bit up in the air at the moment). As the vote suggests, not every member was thrilled with the decision to leave Steel and/or to join an independent union.

The Politics of Raiding

Raiding (when one union tries to recruit members who are already represented by another union) is an extremely contentious issue within the Canadian labour movement. The argument against raiding basically come to down to raiding being divisive (i.e., pitting unions against one another, when they should be cooperating) and wasteful of resources (which could be better spent on servicing members and organizing unrepresented works). There is also concern about the de-stabilizing effect of large-scale raids on the raided unions (which lose dues revenue when they lose members).

Many unions are affiliates of the Canadian Labour Congress (CLC) and affiliates are often referred to as being a part of “the House of Labour”. This terminology is essentially a legitimacy claim that throws shade at non-affiliated unions, suggesting that they are in some way suspect (more on that below). The CLC’s constitution bars raiding by its member affiliates. Article 4.5.a states:

Each affiliate respects the established collective bargaining relationships of every other affiliate. No affiliate will try to organize or represent employees who have an established bargaining relationship with another affiliate or otherwise seek to disrupt the relationship.

The CLC constitution also sets out a process for handling efforts by members of CLC-affiliated unions who seek representation by a different union. These provisions basically serve as an impediment to workers changing bargaining agents by bureaucratizing the process and disincentivizing affiliates from seeking to represent such workers.

In this way, the bar on raiding prioritizes union stability (which is not an inherently bad thing) over worker choice. Workers, of course, retain their statutory right to seek a different bargaining agent during an open period and, at times, CLC affiliates have left the House of Labour (e.g., Unifor in 2018) as a result of raiding (and/or in order to raid).

To navigate these circumstances (wherein no union with “the House of Labour” was likely to agree to represent them, given that Steel was already the recognized bargaining agent), UNA staffers decided to create their own non-affiliated union. This new union may (or may not) decide to affiliate with the House of Labour at a later date.

Non-affiliated unions exist throughout Canada. They are sometimes criticized as being lesser unions, perhaps subject to employer domination and/or unable to provide competent representation and support. Sometimes this criticism seems to ring true, such as with the Christian Labour Association of Canada (CLAC). Other time, such as with the Alberta Union of Provincial Employees, it doesn’t.

In this case, I don’t see much reason for concern. The ULP comprises staffers of a trade union (UNA), who are, by virtue of their professions, able to provide skilled representation. They are also, by virtue of their dispositions, unlikely to be employer dominated. Other union staff in Alberta (such as those who work for the Alberta Union of Provincial Employees) are also represented by independent unions.

If there is a legitimate potential concern about ULP’s ability to serve its members, it might be that the union has not yet accrued significant financial resources to, for example, allow it to provide its members with strike pay. Given the relatively high pay of ULP members, this is unlikely to be a significant barrier to job action, should the union take it. Further, the members of ULP are pretty sophisticated about union matters and would have considered that risk when they decided to cast their vote.

-- Bob Barnetson

Inventive framing of grievances

Typically, when we teach undergraduate students about grievances and rights arbitration, we assume the alleged breach of the contract is obvious and therefore skip over the importance (in practice) of careful grievance framing. This reflects the need to simplify the grievance arbitration (which is pretty complex) in order to not overwhelm students who are new to the process.

As part of a research project, I came across a 2012 case that highlights how the framing of a grievance can be very important to whether or not a union is successful. The decision is:

Canada Safeway Ltd v United Food & Commercial Workers Canada Union, Local No 401, 2012 CanLII 58574 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (58574). CanLii is an excellent repository of Canadian law.

The basic facts are these:

• An employee of a grocery store was caught stealing three chocolate bars (valued at $6.37) from the store at the end of his shift. This behaviour is both a violation of employer policy and a crime.
• An employer loss-prevention officer apprehended the worker in the parking lot. The employee was returned to the store and interviewed by security.
• The employer failed to provide the worker with union representation, which was required by the collective agreement. During the interview, the worker admitted the theft.
• When the company learned the interview had taken place without union representation, it discounted all information from the interview, sought to re-interview the member with a union representative present, and, when the union said “yeah no”, the employer terminated the worker based upon the testimony of a witness to the theft.

The union could have grieved this, arguing that discipline was warranted but the penalty was too harsh. Usually stealing results in termination, but the facts (e.g., low value of theft, worker had a significant cognitive disability, worker admitted theft immediately) might have resulted in a reduced penalty. Or maybe not. Instead, the union framed the grievance as a denial of union representation and sought damages for the griever and for the union (in lieu of reinstatement). We don’t know why the union framed its grievance this way, but we can guess a bit.

To start with, the facts were better for a representation grievance than for a termination grievance. The worker stole the chocolate bars in front of a witness. (My first thought reading that as a former grievance officer is “oh yeah, you’re fucked buddy.”) Arbitrators generally view theft in the dimmest of terms (essentially extinguishing the relationship of trust necessary in an employment relationship). Fighting the discipline (despite the possibly mitigating factors) would be a tough slog for the union.

The employer’s error (not providing a union rep) pushes aside the context (i.e., theft) and triggers the fight on much better terrain for the union. Union representation was a clear requirement of the collective agreement and arbitrators generally come down hard on employers who deny worker union representation. In this case, the admission of theft during the interview also opened the worker to potential criminal charges. (If he’d had a union rep, the rep would have terminated the interview and gotten the griever a lawyer.) And the employer’s efforts to remediate the disciplinary process are a de facto admission of the violation.

There is also the issue of available remedy. If the union had won a grievance on the termination, about the best they could have done given the facts was reinstatement (maybe with back pay, but probably without). There is also some hint that the worker did not wish to return to the job.

Under the representation angle, the union sought $10,000 for the worker in damages and $25,000 for the union. If the union won the representation grievance, it stood to attach significant financial and reputation costs to the employer’s conduct (which hopefully would affect the employer’s behaviour going forward).

(There was also the matter of the jurisprudence around theft changing at this time and this was a good case to test whether an older approach, that favoured employers, was still valid. We don’t know if that was in the union’s mind at the time, but maybe it was, since employee theft is a recurring basis of discipline in the retail industry and getting a favourable interpretation of the jurisprudence would be useful to the union in the long term.)

In short, there was a better chance of winning the representation grievances and a much bigger upside to doing so than of winning a termination grievance. This case suggests that experienced union-side advocates, when faced with an apparent violation of a worker’s rights, will often ask themselves “what kind of grievance is most likely to be successful?”

-- Bob Barnetson

Research: Grievance Arbitration Project

Back in November, I posted a bit about a research project I’m involved with that is looking at grievance-arbitration decisions in Alberta. As of this morning, we’ve coded about 441 decisions by arbitrators (spanning 2006 to 2011) and I’m in a position to talk a bit more about the project and the themes we’re seeing.

When a union and an employer are unable to resolve a disagreement about how the employer has applied the collective agreement (or law, policy, or past practice), they can remit the dispute to an arbitrator for a decision. Arbitration is a form of adjudication akin to the courts. One of the main differences between arbitration and the courts is that, in arbitration, the two parties normally jointly select the arbitrator who will hear the matter (although, sometimes other appointment processes are used).

During the selection process, it is common for a side to internally discuss the merits of proposing or accepting particular arbitrators to hear a matter. This discussion appears premised on the assumption that arbitrators can be (un)sympathetic to certain arguments, evidence, types of grievances, and kinds of grievers. This belief is consistent with a constructivist view of the world, wherein there is infinite stimulus and what one pays attention to and how one interprets that stimulus is driven, in part, by one’s thoughts, beliefs, and expectations.

If the “who you get affects what you get” hypothesis is true, it suggests that identifying patterns in arbitrators’ decision-making can be used to increase the odds of success. This hypothesis (and, if true, the efficacy of various strategies that lever it) is part of what we’ll be examining once we’ve finished coding the dataset (ideally by Christmas 2023, but who knows).

In coding the dataset, we’re assigning the outcome of decisions one of three codes: union win, employer win, or mixed decision. An example of a mixed decision might be a termination grievance. The employer might seek to have the termination upheld, the union might seek to have it overturned and the worker reinstated without penalty, and the arbitrator may eventually decide there was grounds to discipline the worker, but that termination was unreasonable in the circumstances and then substitute some lesser penalty (e.g., a short suspension).

This coding allows us to visually (and statistically, I suppose) represent arbitral decisions like so. Yellow are union wins, green are mixed results, and blue are employer wins.



Note that, in this representation, both the union win and the mixed outcome category result in the worker being better off than they were before the decision. This suggests that looking at the “employer win” category (blue) is a useful way to get a quick and dirty sense of decision patterns.

The graphic above summarizes all decisions. The literature suggests that different types of disputes (e.g., discipline and termination grievances, salary and benefits grievances, grievances addressing seniority, selection, promotion and layoff) will have different win-loss patterns. I have teased apart the data that we have along these lines in the graphic below. Sorry the images are a bit har to read, the lines (top to bottom) are grievances addressing seniority, selection, promotion and layoff, salary and benefits grievances, discipline and termination grievances, and the overall average.



We do seem to see some interesting differences. Note that, in the discipline and termination decisions, the employer typically bears the onus (at least initially) or proving discipline was warranted. In most others kind of grievances, the union bears the onus of proving the grievance should be upheld.

If the “who you get affects what you gets” hypothesis is correct, we should see differences among the decision patterns of different arbitrators. I have presented below a randomly drawn selection of the early data in this regard (carefully anonymized) with the overall average at the top.



What this suggests is that there appear to be large differences in decision outcomes among arbitrators. Two important caveats are worth keeping in mind. This first is that the number of cases in the dataset to date for each arbitrator varies and is, overall, small. Small samples tend to yield swingy numbers, so we shouldn’t jump to conclusions based on a small sample. These differences may attenuate over time as we add cases (although we’re not seeing that yet in the data)

The second is that the facts of each case almost certainly impact the decision of the arbitrator. Our expectation is that, over many cases, differences between cases should attenuate (i.e., wash out) these case-specific differences. Together, these caveats also suggest that eliminating arbitrators with relatively few recorded decisions from the final dataset is likely appropriate.

When we look at arbitrator records on discipline and termination cases (which seem to be the largest single category of cases), we see similarly large differences among arbitrators. I have not visually presented that data, given the small number of cases for each arbitrator.

-- Bob Barnetson

AU sacks its president, but problems continue

Yesterday, Athabasca University terminated the employment of its president, Peter Scott, and appointed the dean of health disciplines as its fourth president in three years (cough, cough). The university has declined to explain why it chose to pay Scott half a year’s salary to go way. According to the Board chair’s content-free and nearly incoherent statement:

Dr. Scott did his part in the puzzle and we're moving forward with Dr. Clark just to continue to grow the university.

Internally, this is seen as political payback (likely orchestrated by the UCP government) for Scott’s opposition to the UCP’s demands that the university locate jobs in the university’s home town of Athabasca. Among the people I have talked to, there are several themes emerging.

First, the timing of the announcement (weeks after Scott’s wife died) is rightly seen as cruel and heartless, which is pretty much on brand for the UCP. The Board chair attempted to explain the timing to the CBC:

Scott's firing by the board comes nearly three weeks after his wife died of cancer. She had just been diagnosed in early December.

"It's terrible," Nelson said. "We have given him some time to deal with that before today."

"Unfortunately, the business of the world, including the business of Athabasca University, goes forward," he said.

"This was a step we had to make. I will continue to treat Dr. Scott with all the respect that he deserves and he does deserve respect in this time."

This reads like "we had a plan to sack him awhile ago, but when his wife died, so we had to wait until the heat was off." This is grossly indecent behaviour and is a real "mask-off" moment.

Second, none of the workers seem particularly upset by Scott getting the boot. The “highlights” of Scott’s time at AU include signing a lockout notice to help the government drive rollbacks during a sham round of collective bargaining and then turning around and stupidly fighting a stupid fight with the same government over the jobs in Athabasca issue. There is, indeed, a palpable level of glee watching a boss get treated as badly as he treated the staff and calls for more bosses to get the boot.

Drawing on (I presume) beauty-pageant conventions, the Board then appointed a runner-up from the last competition as the new president. The latest president faces a lot of big problems.

Enrollment is falling which means the university, after implementing every saving and revenue-generation strategy it could come up with, is still $5m short going into the next fiscal year. There appears to be no coherent explanation for this decline and, consequently, no real plan.

Last week, program directors were told that they would need to review hundreds of invalid and unreliable student evaluations and then use this garbage data to make changes to their courses. Presumably, the logic was that enrollment declines are, at least in part, the fault of faculty course design choices.

Then the next day that plan was scrubbed. That example is part of a consistent pattern of spastic and ill-thought out management decision-making, where staff are basically treated like rental cars (i.e., pin the gas, hammer the brakes, slam it into the curb, who cares about the damage). Years of this kind of shoddy leadership plus the demands of COVID have result is catastrophically low morale, deep cynicism, and burnout.

The university has not yet released the results of its staff survey in the fall (gee, I wonder why…?) but evidence of how bad the results are all around us. Some staff are burning themselves out trying to keep pace with the relentless demand. Some staff are outright quitting. I would say the largest number are just quiet quitting and doing the minimum. I don't know how you turn that kind of deep disengagement around. 

The university’s biggest initiative is the Integrated Learning Environment (ILE). This is basically a software system (called Brightspace), which is supposed to replace our current teaching platform (called Moodle) and other IT systems. AU runs 800+ courses and all were supposed to be migrated to Brightspace by the end of March.

As of last week, about 20 courses had been successfully migrated. From what I can tell, these are all very simple, low-enrollment courses (like one or two students). Another 250 are underway, but about 50 of these are “on hold”, which seems to be code for “oh shit, Brightspace can’t do what we need it to and we don’t know how to fix it.”

This failure to launch seems to reflect that the bosses didn’t do a good job of selecting the new software or grasping the difficulty the migration entails (because they don’t really know how the place works and they don’t trust the staff who do). I am hearing talk that it may take up to two more years to complete this transition.

The new president could make some major gains in credibility by just admitting the ILE project failed and firing the execs in charge of the mess. This might also save the university enough money that it could avoid what is increasingly looking like layoffs. I don’t hold much hope of that because the sunk-cost fallacy is basically AU’s operational mantra.

-- Bob Barnetson

Notice of termination vs severance

One of the challenges of teaching students about interpreting collective agreements is the effect of clauses is often very hard to know because they can interact with other clauses in the collective agreement as well as other regimes of employment law. As part of a research project, I came across a 2011 decision that is a fun read about termination notice and severance pay.

The decision is:

Canadian Energy Workers Association v ATCO I-Tek Business Services Ltd, 2011 CanLII 81659 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (81659). CanLii is an excellent repository of Canadian law.

The basic facts are these:

• The employer was outsourcing a significant number of positions and this resulted in significant number of terminations.
• The collective agreement gave the affected workers rights to (1) working notice (or pay in lieu of notice) under Article 30 and (2) severance under Article 32 and a Letter of Agreement.
• The union argued that the permanent workers were entitled to benefit from both sets of rights; the employer argued that workers were only entitled to severance.
• (There was a second issue around a worker signing a release that isn’t really all that interesting.)

The union’s argument was (loosely, I’m paraphrasing in the interest of space) notice is designed to give workers a chance to find alternative employment while severance is compensation for their investment in their workplace that is lost upon termination. Essentially, these two are complementary, rather than alternative, entitlements.

The employer’s argument (again, loosely) was that the entitlements are mutually exclusive and applicable in different circumstances and this the benefits do not compound. Reading the provisions as complementary creates an excessive benefit for the workers.

I won’t spoil the ending for you. The panel’s decision flows from an interesting exploration of the purpose of each of the rights in the contract, the language used, and the effect they have for different employee groups. This decision is a relatively simple example of this kind of inquiry, that occurs in many contract interpretation grievances.

The ultimate decision (that I found to be surprising) highlights how parties can negotiate provisions that each finds acceptable without mutually working through the actual operation of those provisions. This can reflect the nature of bargaining (where ambiguous language may be a strategy to, for example, defer a fight), the complexity of language (which can give rise to legitimately different interpretations), and the impact of practical constraints (e.g., bargaining is often done under the gun by very tired people who sometimes make errors of omission).

-- 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

AU and Government sign a new IMA, but what does it mean?

Yesterday, Athabasca University and the government finally agreed upon a new Investment Management Agreement (IMA). This IMA purports to address demands by residents of Athabasca (and later by the government) that AU ensure an adequate number of jobs be located in Athabasca. You can read a quick summary of this protracted and public dispute on my blog post from last week.

I have not yet seen a copy of the IMA (they are usually posted on institutional websites) but there have been announcements by the government and by AU President Peter Scott. The image below (which is apparently a copy of some of the performance-based funding metrics AU has agreed to as part of the IMA) has also been circulated on Facebook (sorry about the low quality).

Update 2022.12.14: The IMA is available here.


A few observations are helpful to understand this image:

• Metric 4 requires AU to have 252 staff working in the Athabasca region full-time by March 2023. A few caveats are warranted. This metric does not require staff to (1) work on campus, (2) live in the area, or (3) define how “working in the Athabasca region full-time” will be assessed (this may be set out in a document to which I don’t have access). I am told 252 is the present staff count, so no action by AU is immediately required. Note that there is a tolerance of 3 in the first year, so AU can actually reduce the number of staff working in the region in year one. By March 2025, AU has to increase the number by 25 full-time staff. A net 10% increase over three years is a very modest target, representing a shift of about 2% of AU’s 1200ish workers.

• Metric 5 requires AU to have 44% of its 9-member executive team working in Athabasca by March of 2025. The same caveats as above apply, which we can add that it is not clear (4) if these 4 can count towards the Metric 4 goal of 25, and (5) who defines a member of the executive. The university’s website list of executive members includes the presidents’ chief of staff (who already lives in town) and executive assistant but omits 3 VPs (1 in Calgary and 2 in BC). This list looks like an effort to game this metric by excluding people who perform actual executive functions and pad out the exec with people who don’t. 

• Metric 6 requires the Board, by December 31, to direct the president to cease implementation of the near-virtual strategy and implement a new strategic plan that expands the university’s physical presence in the town of Athabasca. A couple of thoughts occur to me: (1) the near virtual plan will be fully implemented by the end of December so directing the president to “cease implementation” at that point is meaningless, and (2) expanding the physical presence doesn’t necessarily mean more jobs being located in town. AU is telegraphing some kind of research centre located in Athabasca, which would likely meet this requirement regardless if anyone ever uses it.

• A portion of AU’s government funding (rising eventually to 40%, last I heard) is contingent upon AU meeting these metrics. The 3% in the top left corner of metrics 4, 5, and 6 is the weighting they are given in the funding calculation. Update 2022.12.14: The 3% refers to the percentage of overall government funding at risk with this metric. So, if AU gets $47m of its $160m in revenue from that government and 15% of that $47m ($7.5m) is at risk in 20223/23, missing either of location-based targets (worth 3% each) would potentially institutions the $1.41m. But, apparently, the location-based targets don't operate until 2023/24 t. So the financial incentive tied to meeting these very modest metrics is pretty weak. 

On the surface, this looks like a victory on the jobs issue and, certainly, many actors are framing it peace in our time. It certainly seems to offer some prospect of slowing the erosion of AU jobs in the community. It might even result in some small job growth. That said, having been victimized by AU and UCP gaslighting before, I’m inclined to be skeptical.

On the issue of jobs in Athabasca, we have:

• modest, ill-defined, and easily gamed jobs targets,
• that require no immediate action,
• backed by modest penalties, 
• that will not take effect until long after the next provincial election, 
• when there will be a different minister (more on that below), and
• likely a different government, which may re-negotiate or just dump performance-based funding and the associated metrics all together.

So, an uncharitable interpretation of the IMA is that it offers little of substance around ensuring jobs remain in town. If I were one of the local politicians who put their name to glowing comments about the deal in last night’s government press release, I might be asking some hard questions.

Specifically, I might be asking why the minister agreed to such a modest IMA. Did the minister really understand the implications of what he was signing? And, if so, why did he give AU a way to simply rag the puck on the jobs issue for another two years?

One explanation might be that the Minister got dumped into this fight by former Premier Kenney, who championed the jobs issue when we have trying to collect enough votes to keep his job last spring (and, when he didn’t, continued to fight to punish those who defied him) and the Minister (or the new Premier) just wanted a way out without losing too much face. So maybe he talks tough, signs a weak deal, declares victory, and move on? Alternately, maybe the Minister and his handpicked group of Board members got sold some snake-oil by some savvy eggheads. We’ll probably never know.

Whether the community can sustain its efforts to secure AU jobs in Athabasca in the face of an apparent (albeit possibly hollow) victory is hard to say.

Returning to the question of the Minister, one of the tidbits I’ve heard over the last few days is that some actors within the UCP are hoping to have “a better candidate” get the UCP nomination in the Minister’s riding of Calgary-Bow for the 2023 election.

I have absolutely zero insight into UCP politics. But it would be pretty funny if the ”better candidate” turned out to be current AU board chair Bryon Nelson. Nelson ran in the 2016 Progressive Conservative leadership race that was eventually won by Kenney as part of his plan to Frankenstein together a conservative party to beat the NDs.

-- Bob Barnetson