Does SFL limit the state's ability to order workers back to work?

The fall 2020 issue of Labour/Le Travail had an interesting essay entitled “Free to strike? What freedom to strike? Back-to-work legislation and the freedom to strike in historical and legal perspective.” This essay by Eric Tucker was one of four in the volume that examines back-to-work legislation.

I’ve never regretted the time I’ve spent reading a piece by Tucker and this was no exception. The essay starts out examining the three strands of the framework that regulate workers’ freedom to strike. These strands include:

• The liberal order’s foundational commitment to individualism which does not recognize the validity of collective activity (unless the wealthy do it in the form of a corporation). Collective actions, such as strikes, were (usually) suppressed by the state, although this repression was inconsistent and, eventually, a right to strike was recognized.
• The post-war Wagner Act Model (WAM) narrowed the opportunity for workers to engage in legal strikes a spart of a broader strategy of minimally accommodating workers’ demands while containing the power of putting down one’s tools. 
• Essential services restrictions were a late addition as the state extended WAM to public services, with strikes either being limited or replaced with binding arbitration. 

Beginning the mid-1970s, governments began actively intervening in labour disputes through back-to-work (BTW) legislation. The majority of Tucker’s piece examines how the constitutionalizing of the right to strike in the Saskatchewan Federation of Labour case in 2015 may affect the state’s ability to legislate workers back to work.

The upshot of Tucker’s analysis (which is really worth a read) is that BTW legislation is probably a Charter violation but may be saved under Section 1 so long as the BTW legislation minimally impairs the affected right. This, argues Tucker, will likely require an alternative dispute resolution process. In effect, carefully written BTW legislation, absent the punitive measures found in Harper-era laws, will likely be found constitutional.

This analysis suggests that a constitutional right to strike has limited practical utility because it is enmeshed in a legal regime that profoundly constrains the right to strike and gives government the ability to end strikes so long as they provide a reasonable alternative way to settle the dispute. A question this raises is how long will workers continue to participate in such a system?

-- Bob Barnetson

Working conditions in meat plants

John Oliver recently did an interesting piece on working conditions in meat-packing plants. These working conditions are broadly similar to those in Alberta plants.

These conditions are an important factor in the repeated outbreaks of COVID at these plants. Close proximity, relentless pace, and no breaks are pretty common. Workers get injured often and seriously and receive inadequate medical care. Many workers are vulnerable workers, whose residency in the country may be at risk if they get fire. Others have few options for comparable jobs.

 

Alberta’s response to COVID outbreaks in meatpacking plants have basically been ineffective (kind of like Alberta’s broader response to COVID). Which is why we’ve seen outbreaks in plants High River, Calgary, Red Deer, and Brooks. The High River outbreak was one of the largest outbreaks in Canada. Workers and their family members have died. There has been community spread due to ineffective workplace controls.

 

-- Bob Barnetson

 

 

Justice delayed and ultimately denied in worker's death

One of the things labour practitioners talk a lot about is the power of delay, and how employers weaponize it against workers.

When an employer breaks a contract, workers are often stuck living with the consequences until they can get a ruling from a tribunal, court, or arbitrator. This “work now, grieve later” dynamic gives employers an immense amount of power and renders many worker righst effectively moot.

Similarly, when a workers’ compensation board denies a worker’s claim or cut the worker off from compensation, the worker must often make do until an appeal can be heard—often years later. In the meantime, kids go hungry, marriages break up, houses get repossessed.

On the OHS side, while workers can refuse unsafe worker, they often won’t because they think it won’t do any good. Among the reasons workers think this are examples of the state delaying attaching sanction to employer violations of the law. For example, in Alberta, it is rare for the state to lay charges following a death or serious injury until just before the two-year prosecution window closes. Then the prosecution starts, with all of the attendant delays of court proceedings.

Two weeks back, CBC broke a story about an abandoned OHS prosecution. Twenty-one-year-old Martina Levick was killed in June of 2017. She was the public works foreperson for the village of Dewberry. She died when a riding lawnmower she was trying to fix fell on her. Levick’s death was one of 26 fatalities Alberta’s OHS officers investigated that year, but the report is not available on the government website.

Two years after Levick’s death, the government filed charges against the Village of Dewberry. The charges alleged 7 counts of violations of the OHS Act. Court hearings kept getting put off. Eventually, the village applied for a stay of the charges. Alberta Justice has agreed to stay the charges. The village has been absorbed into the County of Vermilion River due to financial problems.

So what happened here is that a worker was killed, likely because the employer was operating unsafely. The delay in filing the charges (which is a systemic OHS problem) coupled with the legal wrangling means that there are essentially no consequences for anyone (except the worker and her family).

This sort of systemic failure of OHS to protect workers and punish negligent employers contributes to workers’ skepticism about the efficacy of contacting the government to enforce their rights. And this dynamics enables employers to let unsafe workplaces slide: they know that there is little chance they will be caught violating the rules and, even if they are, there will be few consequences.

-- Bob Barnetson

Labour & Pop Culture: WCB fraud

 

A colleague passed along this Kids in the Hall skit about construction workers jinning up a fake workers’ compensation claim. The premise is that the worker’s job is so bad he’s prepared to experience a disabling (but non-crippling) injury just to get some paid time off and his co-workers actively help him out.

 

This skit is interesting for several reasons. First, while there are lots of examples of blaming the worker for injuries in popular culture, there are relevantly few that deal with workers’ compensation fraud. 

 

Second, there are almost no reports of workers actually injuring themselves (because workers are not stupid!). Rather, what malingering occurs (and it appears to be pretty rare since being stigmatized as an injured worker is awful) tend to result from workers exaggerating the degree or duration of an injury (the supervisor’s back injury in the skit is actually a good example).

 

Third, the skit gives us a chance to ask what is left out. And, much like real fraud detection in workers’ compensation, what is left out is the employer. Employers failing to report payroll accurately and encouraging workers to not file claims is almost certainly a much bigger problem (that no one wants to tackle because employers are powerful) than worker fraud.

 

Finally, there was a joke about the incomplete level of compensation. “Compensation lets you live life to the fullest. Well, 90% of its fullest.” This deeply appeals to the policy wonk in me. Thanks for the tip, Jonathan!

 

-- Bob Barnetson

The paradox of small business

I'm not much for podcasts but the Alberta Advantage podcast (basically lefty political economy analysis out of Calgary) is often worth a listen. This episode provides an interesting analysis of the role of small business in society. 

Specifically, the episode examine the valourization of small business and how that is used to run cover for capitalists. For example, when big business advocates for lower wages, they get pilloried as greedy. When small business advocates for lower wages, the conversation is almost always framed around helping "job creators" in the local community stay afloat.

The episode also interrogates the actual track record of small businesses with regard to workplace safety and wage theft (spoiler: lousy, often made worse by the precarious employment that they offer). And it explores how the media flips the narrative on things like wage theft by bosses to time theft by workers in order to obscure how shitty some employers are.

Finally, the episode (like most of their episodes) spends a few minutes calling out the provincial NDP for their opportunist boosterism around small business, generally to the detriment of the interests of workers.

-- Bob Barnetson

Farm child fatality report

Back in 2015, Alberta passed laws giving farm workers basic employment rights, including making their employer subject to the ambit of the OHS Act. This reflected that farm work is very dangerous. Most of these changes were repealed in 2019 by the new UCP government, although some basic OHS rights still exist.

During the period that these laws were in full force, there was an incident on a “family farm” in southern Alberta. Laidlaw Ranching Co Ltd. began operations near Bow Island, Alberta in 1970. On the same property as the cattle ranch is a sand and gravel operation (Laidlaw Sand & Gravel Ltd.). The sand and gravel operation was the subject of 17 compliance orders between 2015 and 2020. Both companies are owned and operated by a single family.

On August 14, 2018, an 11-year-old boy (who regularly performed odd jobs on the farm) of one of the owners and a 17-year-old worker (not related to the owners) on the farming operation were hosing off concrete-pouring equipment being used to build a slab near a silage pit. This work was being performed at the bottom of hill.

Another adult worker (of the gravel company) was operating a front-end loader. The loader was poorly maintained. The operator was driving near the location where the young workers were working. When the driver tried to apply the brakes, the brakes failed to engage. The operator then tried to put the loader into reverse. This caused it to stall and made steering difficult and reduced brake functioning.

The child and worker saw the loader coming at them and ran away from of the loader’s direction of travel. At the same time, the loader veered in the same direction the child and worker had run, striking them both. The 11-year-old died while the 17-year-old suffered minor injuries. The fatality investigation report can be viewed here.

At the time, the RCMP characterized the event as an accident and were not contemplating charges (I wasn’t able to find any indication that charges had been laid later). The OHS investigation was completed and referred to Alberta Justice to see if charges were warranted. Justice declined to prosecute and, as far as I can tell, there were no charges, orders (other than a stop work and stop use orders two days after the incident), administrative penalties, or tickets issued to either the farm or the gravel operation.

I have a couple of thoughts.

First, this incident illustrates how workplace injuries and deaths are treated as less serious than injuries and deaths in other contexts. If the loader had been travelling on a roadway when the brakes failed, almost certainly there would have been charges laid and likely a civil settlement (there was a WCB claim during this year, but I cannot tell if it is related to the 17-year-old's injuries).

Second, except for the very unfortunate circumstances (whereby one of the owner’s children died), there were really no consequences for the employer as a result of this incident. Basically, the message for employers is “whaddaya gonna do?” The lack of consequences for even very serious incidents is a long-standing issue in Alberta and is likely a factor in Alberta’s high rate of work-related injury.

Third, while the application of OHS to the farm is often poo-poo’ed by agriculturalists, clearly farm work is dangerous and following OHS principles (e.g., properly functioning equipment, procedures to ensure rundowns are avoided) would have prevented this incident. Further, the notion that small farms are safe is clearly shown to be false. This farm appears to have fewer than 5 regular employees (the test for the application of many employment laws) but includes an onsite gravel operation with heavy equipment.

-- Bob Barnetson

Labour & Pop Culture: Dawson's Creek?

So, I was watching Dawson's Creek last week (don't ask) and stumbled across some labour activism in Season 5, Episode 22 ("The Abby"). By this point in the series, Pacey (Joshua Jackson) is working as a cook in a Boston Restaurant (Civilization).

The restaurant is sold and a new manager (Alex) arrives to shake things up. She fires some of the staff, while promoting others (Pacey included) to exert control. 

Just prior to an important dinner, after which the investors will decided whether or not to open a chain of Civilization restaurants, Alex loses her cool and fires a staff member (who is a single mother working three jobs) in front of the entire staff. This alienates the staff, who donate the dinner top a homeless shelter and provide take-out pizza to the investors. The "staff association" then reads out a letter trashing the manager and everyone quits.

Overall, I thought the episode was pretty realistic in how it portrayed the new boss and her control tactics as well as the response of the workers. Specifically, I liked that it showed them reacting spontaneously and voting with their feet. A more nuanced (but likely more boring episode) might have included them getting together, organizing a series of escalating tactics, and holding a march on the boss (or some other job action). But, in the context of the show (and given the many other plot lines that needed to be wrapped up at the end of the fifth season), that would have been a pretty forced narrative and this one-off mass quitting was more appropriate. If you want a show about organizing, the series Good Girls Revolt might be more your speed.

-- Bob Barnetson