Friday, May 26, 2017

Labour & Pop Culture: Talk a Walk

This week’s installment of Labour & Pop Culture is “Talk a Walk” by Passion Pit. Electropop isn’t really my thing but this song is catchy and was featured in an episode of The Newsroom.

This song offers a sympathetic portrayal of the life of a business man (or men) who is down on his luck. Each verse of the song is based upon the experiences of a different family member of the lyricist.

The result is the singer’s perspective and/or circumstances is constantly changing (i.e., the singer does not stay in character). In a May 2012 interview, Michael Angelakos stated:
It's about very specific family members, the male hierarchy, and how the men in my family have always dealt with money. I've always been really fond of a lot of my family members and not so fond of others. All these men were very conservative; socially very liberal but for some reason, they all came here for capitalism, and they all ended up kind of being prey to capitalism.
Overall, a more metacognitive spin on being a worker than most songs about labour.



All these kinds of places
Make it seem like it's been ages
Tomorrow's sun with buildings scrape the sky
I love this country dearly
I can feel the lighter clearly
But never thought I'd be alone to try1

Once I was outside Penn Station
Selling red and white carnations
You were still alone
My wife and I
Before we marry, save my money
Brought my dear wife over
Now I want to bring my family state side

But off the boat they stayed a while
Then scatter cross the course
Once a year I'll see them for a week or so at most
I took a walk

Take a walk, take a walk, take a walk
Take a walk, oh-oh-oh
Take a walk, oh-oh-oh
I take a walk
Take a walk, take a walk, take a walk
Take a walk, take a walk, take a walk

Practice isn't perfect
With the market cuts and loss
I remind myself that times could be much worse
My wife won't ask me questions
And there's not so much to ask
And she'll never flaunt around an empty purse

Once my mother-in-law came
Just to stay a couple nights
Then decided she would stay the rest of her life
I watch my little children, play some board game in the kitchen
And I sit and pray they never feel my strife

But then my partner called to say the pension funds were gone
He made some bad investments
Now the counts are overdrawn

I took a walk
Take a walk, take a walk, take a walk
Take a walk, oh-oh-oh
Take a walk, oh-oh-oh
I took a walk
Take a walk, take a walk, take a walk
Take a walk, take a walk, take a walk

Honey it's your son I think I borrowed just to much
We had taxes we had bills
We had a lifestyle to front
And tonight I swear I'll come home
And we'll make love like we're young
And tomorrow you'll cook dinner
For the neighbors and the kids
We could rent the Wart of socialists
And all their ten taxes
You'll see I am no criminal
I'm down on both bad knees
I'm just too much a coward
To admit when I'm in need

I took a walk
Take a walk, take a walk, take a walk
Take a walk, oh-oh-oh
Take a walk, oh-oh-oh
I took a walk
Take a walk, take a walk, take a walk
Take a walk, take a walk, take a walk
I took a walk
Take a walk, take a walk, take a walk
Take a walk, take a walk, take a walk
I took a walk
Take a walk, take a walk, take a walk
Take a walk, take a walk, take a walk

-- Bob Barnetson

Tuesday, May 23, 2017

The argument for card-check certification in Alberta

It is expected that the Alberta government will introduce legislation this week containing changes to the Employment Standards Code and Labour Relations Code. Employers are expressing concern with the possibility that Alberta will re-introduce card-check provisions that govern how workers can unionize.

Currently, unionization is a two-step process. First, workers sign a petition or buy union memberships. Then the union applies to the Labour Relations Board (showing support from at least 40% of the workers) and, assuming all is in order, the Board conducts an employee vote about 10 business days later.

Card check would (likely) mean that, if a union can show a clear majority of employees had joined the union (e.g., 65%), then the Board would just automatically certify the union and avoid the need for a vote. (Applications with support lower than the card check threshold would likely still require a vote.)

Card-check was universal in the 1970s. Since then, there has been a general, but uneven, drift toward mandatory certification votes.

The principles underlying all certification processes are that (1) employees should choose whether or not they wish to be represented by a union (2) as a group and (3) free from undue influence.

Related to the third principle, labour laws contain a variety of unfair labour practices designed to prevent unions and employers from exercising undue influence. The effectiveness of these prohibitions is uneven.

One Canadian study suggests that 80% of employees facing a certification drive oppose it. Sixty percent overtly resisted certification by, for example, expressing concern or opposition in captive audience meetings or trying to stall the vote. And almost 20% do things that are likely unfair labour practices (e.g., threats, dismissal).

The effectiveness of these tactics is uneven: some seem to drive down certification success rates and some drive them up (data limitations suggests viewing these conclusions with caution). In broad terms, the upshot is that employer interference with certification drives is both common place and damaging.

The key argument for card check is that it denies employers the opportunity to try a sink the organizing campaign during the time between the application and the vote. The likely effect of introducing card check provisions in Alberta is that there will be more and more successful union organizing drives.

The best evidence for this comes from BC. When it moved from card check to mandatory votes in 1984, there was a 50% reduction in certification drives and a 19% reduction is successful private-sector drives. A return to card check in 1993 saw a 19% increase is successful private-sector drives.  Other studies have found similar effects.

Last week, the Calgary Herald came out against card check, opining:
Such a change would strip employees of their privacy and expose them to possible manipulation, or even intimidation. The decision to support certification is a personal one and should be conducted in the same way voters elect their governments, free from the influence of those who may possess their own agenda. 
Requiring private ballots is fair to everyone — employees and employers.
The Herald’s assertion that certification votes are free from employer influence sits so contrary to the evidence that either the editorial board members have no idea what they are talking about or they do know but are wilfully ignoring how labour relations is actually practiced in Alberta.

Equating the selection of a bargaining agent with the selection of a government is a common (albeit facile) comparison that the Wildrose and business groups use. There are many differences between the two. The most important is that the government doesn't typically threaten to take away your job if you vote against them.

Certainly card-check provisions require workers to express support or opposition directly to union organizers (by signing or not signing a union card). Setting aside the awkward fact (for the Herald, anyways) that this also happens under the vote system (because union organizers need to provide evidence of support to get a vote), I’m not sure that is a big deal.

While I didn’t spend all day at, I couldn’t find any academic studies suggesting intimidation is commonplace or any Manitoba LRB decisions about union intimidation (Manitoba had card check until just recently). This dearth of evidence that unions bully employees very much broadly jives with my experience at the Labour Board from 2001 to 2003 where I took one call about union intimidation and hundreds of calls about employer intimidation.

There is some anecdotal evidence that can be read to suggest card check does not demonstrate workers’ preferences. However, this “evidence” can also be read to support the proposition that employers routinely intimidate workers between certification applications and votes.

On balance, card check appears to result in workers being better able to choose whether or not they want to unionized free from intimidation than certification votes do. Perhaps the most interesting question is whether the NDs will support such a change.

Certainly organized labour wants card check. Choosing not to introduce it may undermine the opposition’s narrative that the NDs are in the pocket of the unions and would take away an avenue of opposition attack. (Being in a union, I can assure you that the NDs are not in the unions' pockets….) Such a decision would be consistent with the ND’s broader move towards the political centre as part of their re-election strategy.

-- Bob Barnetson

Friday, May 19, 2017

Labour & Pop Culture: Boiled Frogs

This week’s installment of Labour & Pop Culture features “Boiled Frogs” by Alexisonfire. The song is about the monotony of work and how, over time, we lose our capacity to recognize how bad it has become. It also touches on how workers are used (and used up) by employers.

Band member George Pettit told Much Music:
"It's an analogy. I wrote it inspired by my father who worked at a job where he designed refrigerator parts for 26 years. He was coming up to his pension the last three years and I guess when people are coming up to their pension they really put the screws to them. They're up for review all the time, trying to get them to quit so that they forfeit their pension. It really makes it a stressful last three years. The song is kind of about that, about there being no loyalty in the workplace. 
"And my mother went to this conference talking to different generations in the workplace and they referred to her generation as 'boiled frogs.' The analogy is that if you take a frog and put it in boiling water, it will jump right out immediately, but if you put it in cold water and then you slowly turn the heat up, they'll just eventually fall asleep and die. Same way with people in the workplace. If it's too hectic when they first get there, they'll just quit and get another job, but if you slowly up the workload, lower the pay, they're more likely to sit there and just boil."
While the boiling frog story is a myth, the dynamic as it applies to work (in my experience) appears to be real. Many people will choose to accept deteriorating conditions rather than leave. This may be due to the high cost of job change (especially as we age) as well as our perception about whether things will be better elsewhere.



[George] A man sits at his desk
One year from retirement,
And he's up for review
Not quite sure what to do
Each passing year
The workload grows

[Dallas] I'm always wishing, I'm always wishing too late
For things to go my way
It always ends up the same
(Count your blessings)
I must be missing, I must be missing the point
Your signal fades away and all I'm left with is noise
(Count your blessings on one hand)

So wait up, I'm not sleeping alone again tonight
There's so much to dream about, there must be more to my life

[George] Poor little tin man, still swinging his axe,
Even though his joints are clogged with rust

[Wade] My youth is slipping, my youth is slipping away
Safe in monotony, (so safe), day after day
(Count your blessings)
My youth is slipping, my youth is slipping away
Cold wind blows off the lake, and I know for sure that it's too late
(Count your blessings on one hand)

[Dallas] So wait up, I'm not sleeping alone again tonight
There's so much to dream about, there must be more to my life

[George] Can't help but feel betrayed, punch the clock every single day
There's no loyalty and no remorse
Youth sold for a pension cheque
And it makes him fucking sick
He's heating up, he can't say no

(Whoa-oh-oh-oh-oh)[x4]

[Dallas] So wait up, I'm not sleeping alone again tonight,
There's so much to dream about, there must be more to my life.
(So wait up)
So wait up I'm not sleeping alone again tonight
Between the light and shallow waves is where I'm going to die
Wait up for me
Wait up for me
Wait up for me

-- Bob Barnetson

Tuesday, May 16, 2017

Research: Impact of IT outsourcing on employees

The journal Work, Employment & Society recently published an article entitled “‘An end to the job as we know it’: how an IT professional has experienced the uncertainty of IT outsourcing” that foregrounds the experiences of an employee whose work is being contracted out.

The worker’s story starts with the creation of cost-savings targets by the employer. Once communicated to shareholders, the targets set expectations that may (or may not) have been achievable. The result was intense pressure to generate cost savings.

Internal restructuring and efforts to benchmark in-house work against the market” lead to significant anxiety and the spectre that this process was a sham. Eventually, all five IT functional were scheduled for outsourcing (mostly to India). 

The actual savings attributable to the outsourcing is roughly what the CEO receives as a annual bonus. All other savings (and most of the overall savings) could have been achieved by internal staff without the risk of shifting to unstable IT platforms staffed by inexperienced and dis-tinterested contractors.

The impact of this decision on morale was significant, especially given that many of the affected employees had made an extra effort (including accepting pay freezes and unpaid leave to help the company out during previous difficulties). Voluntary redundancies followed, leaving chaos, knowledge gaps, and emotional distress in the wake.

Offshoring was eventually announced with the remaining staff being treated as disposable. The employer skillfully split the workforce into different factions (those continuing and those leaving) to sow division and prevent a coherent response by the workers.

Workers wanting to receive their severance packages were then required to transfer their business knowledge to contractors and sign a gag order. Those who remain have little power and there is a significant emotional cost to all workers involved.

Overall, this short narrative highlights the messy and damaging impact the outsourcing can have on employees and their organization. One effect (not considered in the original projections) is that those workers who remain are constraining their efforts due to the betrayal by their employer of the psychological contract they previously established.

(In retrospect, I should have put a trigger warning in this post for AU employees who are reading this!)

-- Bob Barnetson


Friday, May 12, 2017

Labour & Pop Culture: Westray

Westray Memorial
This week’s installment of Labour & Pop Culture is “Westray” by Short Notice. This week marks the 25th anniversary of an explosion at Nova Scotia’s Westray mine that killed 26 workers and injured 11 more. The explosion was the result of the employer negligence and gave rise to (sadly ineffective) amendments to the allowing criminal prosecutions for workplace injuries and deaths.

There are a number of Westray songs. I choice this one because of the themes it pulls out. They include how politics is so closely intertwined with employment in resource-based communities:
Pictou county is Tory blue
Dyed in the wool and blue collar too
Elect a Prime Minister they’ll treat you kind
They’ll give you a job in the Westray mine
Perhaps most important is how workers’ are pressured to trade their safety (and their lives) for employment:
Knee deep in dust they worked every day
Inspectors and mine bosses looked the other way
You want to keep your job you will tow the line
Not a word leaves the bowels of the Westray mine
The song also pulls no punches about who was responsible for the disaster and how little they cared:
Twenty-two families were torn that day
Working men’s dreams simply snuffed away
While Frame and Phillips still live happy lives
They lose no sleep over the Westray mine
Frame is Clifford Frame, the businessman who ultimately controlled the Westray Mine. Phillips is Gerald Phillips, one of the mine managers who took no action on the safety concerns.



The flesh and bone and the steel’s entwined
There’s blood on the coal in the Westray mine
There’s blood on the coal in the Westray mine

Pictou county is Tory blue
Dyed in the wool and blue collar too
Elect a Prime Minister they’ll treat you kind
They’ll give you a job in the Westray mine

The foord seam coal is known to kill
Every scar on her face she has always filled
With the lives of the men who have loathe to find
To stay they must work in a foord seam mine

Knee deep in dust they worked every day
Inspectors and mine bosses looked the other way
You want to keep your job you will tow the line
Not a word leaves the bowels of the Westray mine

Recession makes men work where they should not stay
They will risk their lives for a good days pay
Till gas and politics grew too great to confine
Blew the roof off the ramp of the Westray mine

Bare faced miners and draegermen too
Did all that good brave men could do
But not a living soul was there left to find
After hell had its way in the Westray mine

Twenty-two families were torn that day
Working men’s dreams simply snuffed away
While Frame and Phillips still live happy lives
They lose no sleep over the Westray mine

Many years have passed sadly little has changed
After all this time not one scoundrel’s paid
Till politicians’ lives are on the line
Good men will die in some Westray mine

The death blast roar and the sirens whine
Pray those husbands sons and brothers aren’t yours and mine
Leave their soul on the rock in the Westray mine
Soul on the rock in the Westray mine

-- Bob Barnetson

Tuesday, May 9, 2017

Mirror, Mirror: NDs act like Tories on Bill 7

Last week, Alberta’s Bill 7 was passed and came into effect. This Bill moves faculty and graduate student collective bargaining under the Labour Relations Code. This means bargaining impasse will (effective immediately) be resolved via strike-lockout. Overall, Bill 7 is sensible and necessary to respond to the evolving jurisprudence around freedom of association.

The two most contentious parts of Bill 7 have to do with transition periods. Bill 7 creates a five-year ban on workers selecting a different (or no) union. In contrast, Bill 7 moves workers from arbitration to strike-lockout immediately (and, indeed, a bit retroactively).

During debate, Alberta Party MLA Greg Clark introduced an amendment to create a transition period to strike-lockout. This extra time, he said, would allow workers and their unions time to prepare, both financially and organizationally for this fairly fundamental change to bargaining. Clark proposed a three-year extension, but even a one-year delay would have been a huge improvement.

Advanced Education Minister Marlin Schmidt indicated the government would oppose the amendment:
We believe, Madam Chair, that because of the length of time between the introduction of this bill, the lengthy consultation process that we’ve engaged in with our stakeholders since October 2015, and the fact that this decision came down in early 2015, the faculty associations have had approximately two years to prepare for a transition to this strike/lockout model. We believe that the transition time that has been given and is recognized in this bill is appropriate and just. (p. 811).
This response has a certain alt-facts ring to it. The content of the legislation was unclear until a month ago. The government clearly promised during the consultations that there would be a transition period. Every submission I saw by faculty associations flagged the need for a transition period. By contrast, there was no indication that strike-lockout would start immediately or affect negotiations currently underway. That kind of news would have galvanized associations to act immediately.

The Minister’s suggestion that the consultation period was the transition period (just, apparently, a secret transition period) is the kind of sophistry unions are used to from Tory governments. Compounding the growing sense that we'd slipped into some kind of alternate universe was ND MLA David Shepherd efforts to do some damage control later that day:
Now, the fact is that nobody will lose the right to use binding arbitration if Bill 7 is passed. In fact, it remains available on a voluntary basis, with agreement from both parties, under section 93 of the Labour Relations Code. (p.830)
This statement is either deeply naïve or completely disingenuous. Labour relations are about power and money. If an employer suddenly (by act of government) finds itself in a better position to grind wages, is it really gonna agree to binding arbitration and give away that advantage?

So what is the real reason for this double-cross?

Shepherd helps us out here when he explained the rapid shift to strike-lockout is about saving the government money: “Indeed, I think it’s a fiscally responsible thing to do… .” (p. 830) and “it will allow the faculty, the graduate students, postdoctoral fellows, and the institutions to come to more prudent agreements ” (p. 831). “More prudent” is neoliberal code for “lower wages”. Still later, Shepherd noted:
Indeed, given our current economic climate I think it makes sense that we try to find labour negotiation models that are going to ensure that we use public dollars responsibly. We know that compulsory arbitration in the past has at times tended to result in higher wage increases. That’s something that’s not sustainable, and we certainly recognize that it is not the direction to be going in for the province right now (p. 831)
Shepherd is, of course, wrong about arbitration giving unions unsustainable wage increases (my association, for example, have taken zeros in four or five of the last 10 years because that is what we would have gotten at arbitration).

Setting aside, you know, facts, basically what is going on here is the NDs are in a fiscal bind and most expeditious way to minimize the wage bill in PSE was to give employers a hammer in the short-term by moving to strike-lockout while unions are unprepared.

This is exactly the kind of move the Tories would have made, although the Tories would have at least had the good political sense to lie about it. That the NDs have done this under the guise of protecting workers’ associational rights is particularly galling.

To be fair, the NDs weren’t the only who appeared to have transported into an alternate universe. Wildrose MLA Wayne Anderson proposed extending the period during which workers are stuck with their current bargaining agent from 5 years to 10 years. So basically the province’s most right-wing party is advocating forced unionization. (Pro tip: This may not play well with the base.)

Anderson’s motion is also inconsistent with the Wildrose’s handwringing about the possibility that the NDs will enact card check certification for workers throughout Alberta. Basically, the Wildrose is (facilely) asserting that the only democratic way to determine if workers want a union is through a certification vote (which gives employers time to meddle in the workers’ decision). Yet, apparently, it is cool and all democratic-like to deny faculty and grad students any opportunity to select a different (or no!) union for 10 years.

The ND’s response?
Mr Schmidt: … Of course, they won’t have that choice until 2022 as we recognize that there is some need to transition faculty associations and grad student associations into the new model so that they are well positioned to represent their members at the bargaining table. … We feel that 2022 is certainly an adequate transition time. Five years will give every faculty association and grad student association ample time to prepare for that date. (p.813)
Again, a totally factually incorrect statement: faculty associations and GSAs have been successfully representing their members for years. There is no need for a transition period around raiding and decertification.

Yet, if we accept the logic of Minister Spock's Schmidt's statement, he's but himself in the untenable (and illogical position) of saying that (1) faculty associations need time to transition to the new rules around bargaining agent status but (2) they can just be dumped willy-nilly into a new dispute resolution process where their employers will have an opportunity to roll them at the bargaining table?

This is a profoundly disturbing (and hypocritical) position for the government to take.

Faculty deserve the right to select their bargaining agent now, not in 2022.

Faculty currently in bargaining deserve a fair chance to prepare for a lockout by their employer instead of being dropped in the soup by the NDs.

And faculty deserve an apology for (1) being misled by the government about the transition period and then (2) thrown under the bus so the NDs can try to lock up the centre vote by being "fiscally prudent".

-- Bob Barnetson

Friday, May 5, 2017

Labour & Pop Culture: Get Back In Line (Again)

This week’s installment of Labour & Pop Culture is “Get Back in Line” by Motorhead. I ran across this song while looking for a video of the Kink’s song by the same name.

This song is explicitly about class conflict in modern society. Lenny opens by singing about how workers “fight for every crust” and “all things come to he who waits” but “the waiting never ends”.

The video contrasts the life of the rich and powerful (with champagne, coke, opulent surroundings, and extravagant food) with the gritty experience of the band (and, presumably, their fans).

The band’s entry into this world (and subsequent drubbing of the wealthy) metaphorically speaks to how habits, beliefs and laws are the only thing that allows the existing power structure to persist.
We are the sacrifice and we don't like advice
We always pay the price, pearls before swine
Now we are only slaves, already in our graves
And if you think that Jesus saves, get back in line
How long such an arrangement will persist in a world of decreasing opportunity fr the working class is an interesting question.



We live on borrowed time, hope turned to dust
Nothing is forgiven, we fight for every crust
The way we are is not the way we used to be my friend
All things come to he who waits, the waiting never ends

We are the chosen few, we are the frozen crew
We don't know what to do, just wasting time
We don't know when to quit, we don't have room to spit
But we'll get over it, get back in line

Stuck here ten thousand years, don't know how to act
Everything forgotten, specially the facts
The way we live is running scared, I don't like it much
All things come to he who waits but these days most things suck

We are the chosen ones, we don't know right from wrong
We don't know what's going on, don't know enough to care
We are the dogs of war, don't even know what for
But we obey the law, get back in line

We are trapped in luxury, starving on parole
No one told us who to love, we have sold our souls
Why do we vote for faceless dogs? We always take the bait
All things come to he who waits but all things come too late

We are the sacrifice and we don't like advice
We always pay the price, pearls before swine
Now we are only slaves, already in our graves
And if you think that Jesus saves, get back in line

If you think that Jesus saves, get back in line

--Bob Barnetson

Tuesday, May 2, 2017

"Canadians first" rhetoric is icky and untrue

In mid-April, the provincial and federal governments announced a new “Employer Liaison Service” which connects Alberta employers who seeking staff with unemployed Albertans.

This service is intended, in part, to dampen employer concerns about federal government’s recent refusal to process applications from employers seeking temporary foreign workers (TFWs) in 29 high-skill occupations.

The temporary foreign worker program is certainly a program in need of reform. Its expansion in the mid-2000s created a large category of extremely vulnerable workers (whose residency was contingent upon their employment) and whose employers (naturally) exploited and endangered them.

There is also some suggestion that the TFW program loosened the labour market unnecessarily, resulting in wage suppression and, perhaps, reducing the opportunity of Canadians from traditionally disadvantaged group to access employment.

While policy change is due, some context is useful here. Of the 10,000 TFWs that employers brought to Alberta in 2016, only 400 were in the 29 high-skill occupations that the federal government recently added to its “do not process” list for the next two years (I've heard a couple of different versions of the numbers but the differences aren't really substantive). So this is totally a symbolic move with little practical effect on the labour market or employers.

Alberta Tory MP Matt Jeneroux tepidly supported the change, telling CBC:
We're intrigued that they're looking at Alberta finally, but let's point out that it's a step in the right direction. But that being said, it's a small one.
It is important to note that it was Jeneroux’s own party that opened the flood gates to foreign workers in 2006, both through expanding the TFW program and by signing dozens of new free trade agreements that have labour mobility provisions. I couldn't find any comment on the changes from former TFW kingpin and now Alberta-Tory-leader-in-hiding Jason Kenney. You can watch the Alberta Federation of Labour's response below (I hope--the link was kind of hinky).



The federal Liberal government has been pushing a “Canadians first” message around this change. For example, Employment, Workforce Development and Labour Minister Patty Hajdu recently said:
The focus of the federal government with the temporary foreign worker program is always to make sure Canadians have the first crack at available jobs, and then after that is done, then to look at supporting employers with prolonged labour shortages in very specific areas.
I certainly see the political attraction of framing these changes as “Canadians first”. Critics of the change appear to be against “Canadians” or “jobs for Canadians”. But this framing has some problems.

First, it isn’t true. There were over 200,000 unemployed Albertans in March. Yet, in 2016, the feds let employers hire 10,000 TFWs (mostly in low skill occupations) in Alberta. (There were also over 30,000 foreign workers in Alberta under various international labour mobility programs.)

Basically, there have been no meaningful reforms to address (1) inappropriate hirings of TFWs, or (2) exploitation of TFWs. Indeed, the program continues on pretty much as it always has. In theory, employers have had to “prove” there are no Albertans available to work. But that process is widely (and correctly) perceived as a joke and easy to manipulate.

Second, this “Canadians first” framing comes off as xenophobic. It is a slightly nicer version of “fureners is stealin' ar jobs”. The history of the TFW program is that foreign workers were invited here by employers with the blessing of the federal and provincial Tories. Then they were treated terribly. Trying (however subtly or inadvertently) to shift responsibility for the problems of the TFW program onto the TFWs is profoundly unfair.

The announcement is also deeply cynical. The changes announced affect about 4% of TFW hires in Alberta. If TFWs pose a threat to Canadians requiring a federal response, shouldn't the response by meaningful? For example, why not eliminate the TFW program entirely?

An interesting question is why do Alberta employers, given an unemployment rate of 8.4%, continue to seek TFWs? The rationale advanced by business and government for the TFW program has historically been one of labour shortage. That employers continue to hire thousands of TFWs in the face of a huge labour surplus suggests that labour shortages are a red herring.

Really what employers want is cheap and compliant workers. Whether governments ought to help them access such a workforce—given its potential to reduce wages and safety for all workers—appears to be a question the federal government is reluctant to engage head on.

-- Bob Barnetson

Friday, April 28, 2017

Labour & Pop Culture: Get Back in Line

This week’s installment of Labour & Pop Culture is “Get Back in Line” by the Kinks. This song is from 1970 and speaks to the experience of going to the labour exchange and hoping to be selected for work. The Kinks note that “Facing the world ain’t easy when there isn’t anything going.”

The high unemployment and deeply entrenched class system of Britain in the 1950s and 60s left many workers powerless and vulnerable to chance and the whim of others. The singer notes that
'Cos when I see that union man walking down the street
He's the man who decides if I live or I die, if I starve, or I eat
Then he walks up to me and the sun begins to shine
Then he walks right past and I know that I've got to get back in the line
The result is a deep sense of shame and emasculation:
But all I want to do is make some money
And bring you home some wine
For I don't ever want you to see me
Standing in that line
The melancholy melody mirrors the lyrics. One possible outcome of a system that gives many workers little left to lose is radical politics and trade unionism.



Facing the world ain't easy when there isn't anything going
Standing at the corner waiting watching time go by
Will I go to work today or shall I bide my time
'Cos when I see that union man walking down the street

He's the man who decides if I live or I die, if I starve, or I eat
Then he walks up to me and the sun begins to shine
Then he walks right past and I know that I've got to get back in the line
Now I think of what my mamma told me

She always said that it would never ever work out
But all I want to do is make some money
And bring you home some wine
For I don't ever want you to see me
Standing in that line

Cause that union man's got such a hold over me
He's the man who decides if I live or I die, if I starve, or I eat
Then he walks up to me and the sun begins to shine
Then he walks right past and I know that I've got to get back in the line

-- Bob Barnetson

Wednesday, April 26, 2017

New report on occupational fatalities

Just in time for the Day of Mourning, University of Regina Prof Sean Tucker has posted a province-by-province analysis of occupational fatalities in Canada. This is a useful analysis (most other analyses are at the national level) that also breaks out deaths due to workplace incidents and those caused by occupational diseases.

Tucker does a good job of identifying the data limitations (it is WCB data and most of it least a year old). Alberta's data is represented below. Fatalities are up in the 2016 data I have seen (this figure stops in 2015). The most striking feature of this figure is the significant rate of fatality due to occupational disease.

The report also has some useful rankings by province and territory (although high fatality rates in the territories skew the results some). Among provinces, Alberta had the second highest rate of fatalities per 100,000 workers between 2010 and 2015. Alberta had the sixth highest rate of occupational disease fatalities during this same period. This second rate has been trending upwards in Alberta over time.

What this suggests is that additional attention to reducing exposure to biological and chemical agents should be an important part of any OHS improvements in Alberta.

-- Bob Barnetson

Tuesday, April 25, 2017

Employment Standards changes for vulnerable workers

Over the past year, my colleague Jason Foster and I have been working with an informal group comprising people and organizations knowledgeable about the experiences of migrant workers in Alberta. The purpose of this group was to suggest changes to Employment Standards legislation and policy to ensure it worked better for migrant workers. The group's submission to Alberta's Employment Standards Review is below.

-- Bob Barnetson

Recommendations for Changes to Alberta’s Employment Standards Code

Submitted by the Employment Standards Working Group

The Employment Standards Working Group was created in early 2016 by a group of community advocates out of a desire to address problems with the existing Employment Standards Code for especially vulnerable workers in Alberta. With the government looking to review key pieces of legislation and policies that cover working people, it was felt that there may be an opportunity to have some input into legislation and policies that directly affect especially vulnerable workers.

The group is made up of a cross section of concerned people that provide support to vulnerable workers, and other social justice advocates.

Our submission focuses on areas that impact workers with precarious immigration status (e.g., temporary foreign workers, live-in caregivers, seasonal agricultural workers) who are particularly vulnerable to employer pressure. These workers will almost never file an Employment Standards complaint because they fear their employer will terminate their employment and, thereby, their ability to remain in the country.

While the recommendations in this report are specific to the needs of workers with precarious immigration status, we believe they apply to vulnerable workers more broadly, for example, adolescents and young workers, immigrant or refugee workers, workers with disabilities, or seniors.

This submission to the Government of Alberta Employment Standards Code Review is made on behalf of the Working Group members and other concerned citizens. The submission is made on behalf of the following individuals and organizations:

Marco Luciano
Migrante Alberta

Bob Barnetson
Professor, Athabasca University

Jared Matsunaga-Turnbull
Alberta Workers’ Health Centre

Jason Foster
Assistant Professor, Athabasca University

Clarizze Truscott
Kabisig Society of Fort Saskatchewan

Gemalil Biscocho
Edmonton Immigrant Services Association

Calgary Social Workers for Social Justice 

Ethno-Cultural Council of Calgary

Multicultural Health Brokers Cooperative (Edmonton)
Public Interest Alberta

Renters’ Action Movement (Calgary)

The Fight for $15

Women Together Ending Poverty

Workers’ Resource Centre (Calgary)

Sara Dorow
Associate Professor, University of Alberta

Tracy L. Friedel (Nehiyaw-Métis)
Associate Professor, University of British Columbia

Karen Hughes
Professor, University of Alberta

Phil E. Okeke-Ihejirika
Professor, University of Alberta

Bukola (Oladunni) Salami
Assistant Professor, University of Alberta

Dr. Alison Taylor
Associate Professor, University of British Columbia

Overview
The purpose of Alberta’s Employment Standards Code is to establish and enforce the minimum terms and conditions of employment that are acceptable in Alberta. This legislative floor of rights plays an important role in ensuring work is fair and safe by establishing (for example) a minimum wage, maximum hours of work, and mandatory rest breaks.

The floor of rights is particularly important for workers with precarious immigration status. Workers without citizenship or landed immigrant status—such as live-in care givers, temporary foreign workers, and seasonal agricultural workers—are often dependent upon their employers for their rights to work and to remain in Canada.

Current immigration policy makes workers with precarious immigration status particularly vulnerable to employers seeking to minimize their labour costs. Data on Employment Standards violations is elusive but, in 2010, a review of 325 inspections of employers employing temporary foreign workers found 74% of employers were violating Alberta’s laws (CBC, 2010)

Issues and Recommendations
The high level of exploitation faced by workers with precarious immigration status raises several issues that are outlined below with specific policy recommendations.
  1. Complaint-based enforcement is not effective. Increase enforcement and target industries employing workers with precarious citizenship status. 
  2. Recovery period for unpaid wages is too short. Extend the period from 6 months to 2 years and, when an employee is still employed, fix the crystallization date of the period on the date of complaint. 
  3. Disguised Employment Relationships. Amend the ESC to empower enforcement officers to make determinations of whether a worker is an employee, using legal standards established by the courts and to automatically extend employment standards rights to workers defined as “dependent contractors. 
  4. Exceptions disadvantage workers with precarious immigration status. Eliminate the Employment Standards exceptions for domestic workers and migrant caregivers. 
  5. Minimum wage is not a Living Wage. Increase the minimum wage to $15/hour within 12 months with additional increases each year until the minimum wage equals a level of a living wage. 
  6. Appeal processes disadvantage migrant workers. All appeals should be via a common and expedited process. Officers (not employers or employees) should be responsible for defending the officer’s original order during the appeal process. 
  7. Personal Leave. Provide all workers with 10 days of paid, job-protected family responsibility leave. 
Issue 1: Complaint-based enforcement is ineffective

Alberta relies heavily upon worker complaints to identify employer noncompliance with Employment Standards Code. Workers—particularly workers with precarious employment and/or legal status—are unlikely to complain due to fear of retribution and unfamiliarity with the system. Consequently, there is widespread noncompliance with the Employment Standards Code that goes un-investigated.

Recommendation

Increase resources to enforcement to allow the following:

1. Hire more Employment Standards officers.

2. Expand Employment Standards officer training to include education in human trafficking, as some workers who are vulnerable to Employment Standards violations may additionally be victims of human labour trafficking.

3. Mandate biannual inspections of all Alberta employers employing workers under the live-in caregiver, temporary foreign worker, and seasonal agricultural program.

4. Empower Employment Standards officers to notify Immigration Canada when violations of the Employment Standards Code or the workers’ contract is discovered, as long as the notification does not put the workers’ residency at risk.

5. Expand pro-active inspections (i.e., inspections not triggered by complaint) targeting industries known to employ significant numbers of workers employed under International Mobility Programs.

6. Eliminate the requirement for workers to have sought to resolve the matter with their employer through the complaint process.

7. Enhance and apply penalties for employer non-compliance.

8. Enhance and apply penalties for employer retaliation.

Background

The Employment Standards Code outlines a minimum set of terms and conditions of employment in Alberta. The Code gives Employment Standards staff the ability to inspect employers to ensure compliance. Where employers are found to be noncompliant, the Code allows Employment Standards staff to issue orders and seek the prosecution of violators. Enforcement activity can also be triggered by complaints (typically from workers).

There were 4728 Employment Standards complaints filed in 2014/15 and 5165 investigations completed. Although a provincial investigations team was established to focus on proactive inspections, enforcement of Alberta’s Employment Standards continues to operate largely on the basis of worker complaints (Alberta Jobs, Skills, Training and Labour, 2015).

Rationale

Complaint-based enforcement of employment laws is widely regarded as an ineffective compliance strategy. Fear of (illegal) employer retribution and concerns about the efficacy of complaints means relatively few workers complain about Employment Standards violations and most of these complaints are made by workers after they have left their employment (Thomas, 2009; Arthurs, 2006; Weil and Pyles, 2005; Ontario, 2004). The result of this dynamic is a culture of noncompliance, wherein workers complain less even as violations increase (Weil, 2012).

Anecdotal evidence drawn from a cross-section of groups that provide support to workers with precarious immigration status (e.g., temporary foreign workers, live-in caregivers, seasonal agricultural workers) shows that they are particularly vulnerable to employer pressure. These workers will almost never file an Employment Standards complaint because they fear their employer will terminate their employment and, thereby, their ability to remain in the country.

A significant increase in inspection activity is required to incentivize employers to comply with Alberta’s employment standards. Periodic and random inspections of employers who have hired workers under federal labour mobility programs as well as targeting employers in industries known to hire large numbers of workers through international mobility programs would effectively utilize enforcement resources to ensure the protection of these vulnerable workers.

Under current legislation, employers who have hired through federal labour mobility programs can lose access to these workers for non-compliance with the Employment Standards Code. Consequently, empowering Employment Standards officers to provide the federal government with the results of workplace inspections would create a further incentive for employers to comply with both the Employment Standard Code and the contract that the employer signed with the worker.

At present, employers face no meaningful penalty should they be found to have contravened the Employment Standards Code. Instead, the Employment Standards officers seek simply financial restitution. The absence of penalties when employers shortchange workers means non-compliance entails no risk. Enacting penalties for non-compliance (and for retaliation in the event of a complaint) should reduce the willingness of employers to violate the Employment Standards Code.

Issue 2: Recovery period for wages is too short

Employees can only recover six months of unpaid wages and overtime. Further, this six-month recovery period is routinely shortened for employees still employed by the employer by the amount of time required to complete an investigation.

Recommendation

Section 90 of the Employment Standard Code be amended to:

(1) extend the period of time that an order can encompass to two years; and

(2) have complaints by presently employed employees crystallize on the date the complaint was filed.

Background

When an Employment Standards officer determines that an employee is owed wages or overtime pay, s.90(4) of the Employment Standards Code allows the officer to issue an order directing an employer to pay the wages owed. The Code limits the order to wages that should have been paid in the six months prior to the order (or the employee’s termination date). This limitation has two effects.

First, employees who have been shorted wages for a period of greater than six months cannot recover such wages through an Employment Standards complaint. Presumably, the policy rationale is that employees should be aware of and act upon under-payment of wages. Many employees—particularly those with precarious immigration status—will be unwilling to risk filing a complaint until after the employment relationship has been terminated because they fear employer retaliation, or may be unaware of the limitations. In these circumstances, the six-month timeline on orders deprives workers of wages they are owed.

Second, for employees who do file a claim while still employed, the six-month period crystallizes on the date the order was issued. The order can only be issued after the officer has completed an investigation. What this means is that employers can reduce the amount of wages owed by stalling the investigation and thereby delaying the issuance of the order. Further, any significant increase in complaints (i.e., officers’ workload) occurs, the resultant delay in issuing orders reduces the amount of owed that can be recovered.

Rationale

The Employment Standards Code is designed to create a floor of rights and a low-cost process by which employees can access those rights. Limiting the period of wage recovery to six months (or less, in many cases) undermines the basic public policy objective of the Code. While it might be argued that employees ought not sit on their rights, at present, fear of employer retaliation means that workers are unlikely to make a complaint.

Extending the period of time that employees can collect owed wages and (for workers still employed) fixing the crystallization date of that period on the date the complaint was filed on would improve the ability of workers to recover owed wages.

Issue 3: Disguised Employment Relationships

Some employers are pressuring workers to agree to operate as independent contractors even though the relationship is that of an employee. Upon conversion to independent contractors, workers have significantly less access to employment and other social rights and are excluded from the Employment Standards Code. This employment status places the worker in a more vulnerable and precarious situation.

Recommendation

Amend the Employment Standards Code to:

1. empower enforcement officers to make determinations of whether a worker is an Employee, using legal standards established by the courts.

2. automatically extend Employment Standards rights to workers defined as “Dependent contractors” under law.

Background

The legal relationship between employer and employee has significant ramifications for the employment rights an employee possesses. Employees have a wider range of rights, including coverage under the ESC and legal rights under common law (e.g., right to sue for wrongful dismissal) than do Independent contractors. Independent contractors possess none of these rights as the relationship is seen as a contract between equals. In Canadian law, the concept of a Dependent contractor has evolved to recognize contractor relationships where the worker (Dependent contractor) is highly dependent upon the employer for their livelihood. Dependent contractors possess some rights under common law (termination rights) but are not covered by the Employment Standards Code.

These statuses have been clearly defined and the courts have established criteria for determining which is appropriate. Some of those criteria include control of work process and hours of work, ownership of tools and possession of financial risk. Despite the legal clarity, many employers attempt to designate employees as Independent contractors to reduce the employer’s legal and financial obligations. While all workers are vulnerable to this misuse of employment status, workers with precarious immigration status are particularly at risk of such maneuvers.

Rationale

Classifying a worker as an Independent contractor excludes them from the Employment Standards Code, essentially taking away the floor of rights that are intended to apply to all workers. They lose common law rights, such as protection from unfair dismissal. They are also ineligible for WCB, EI and other social benefits tied to employment status. The inappropriate classification as a Dependent or Independent contractor has direct and significant consequences for the worker. Workers with precarious immigration status report being pressured by employers to accept contractor rather than employee status. It is difficult for them to refuse such pressure due to fears of losing employment and risking their residency in Canada. As a result many are working under formal arrangements that create increased insecurity and vulnerability.

Issue 4: Exceptions disadvantage workers with precarious employment status

As domestic workers, workers falling under the Federal Live-In Caregiver program (formerly the Live-In Caregiver program) are excluded from Employment Standards outlining overtime and maximum hours of work. They also are exempt from minimum wage criteria due to allowable deductions. Combined with precarious immigration status and potential social isolation, these exclusions make Live-In Caregivers significantly vulnerable to employer exploitation.

Recommendation

Eliminate the Employment Standards exceptions for domestic workers and migrant caregivers.

Background

Section 6 of the Employment Standards Regulation exempts employees performing domestic work in a private dwelling from Part 2 (Divisions 3 and 4) of the Code, excepting ss.18-19. Practically, what this means is that domestic employees are not eligible to be compensated for overtime and there are no maximum hours of work (although rest period and days of rest requirements apply).

Section 9 of the Regulation sets a monthly minimum pay of $2127 for employees who lives or lives primarily in the employer’s home. Employers are also entitled to make specified deductions for room and board, including deductions that reduce a domestic employee’s wage below the minimum wage. These exceptions to Employment Standards significantly affect workers who work in Canada under the Live-in Caregiver program.





Rationale

The absence or reduction of Employment Standards rights around hours of work, overtime, and the minimum wage negatively affect workers in the Live-In Caregiver program. Combined with social isolation and the workers’ precarious citizenship status, these exceptions make workers in this program vulnerable to exploitation.

The purpose of Employment Standards is to create a floor of rights. Creating exceptions that negatively affect workers who are already vulnerable due to their precarious citizenship status undermines this purpose. There are also knock-on effects of the exclusion: the lack of official overtime slows the rate at which Live-in Caregivers qualify to become permanent residents.

Issue 5: Minimum Wage is not a Living Wage

The existing minimum wage is inadequate to ensure all workers are able to support themselves and their families. The Alberta Government has committed to increasing the minimum wage to $15/hour by October 2018. The delay in increasing the minimum wage to the level of a living wage means low-wage workers are still unable to make ends meet properly. Workers with precarious citizenship are more likely to work in occupations that earn less than that rate.

Recommendation

Increase the minimum wage to $15/hour within 12 months and additional increases each year until the minimum wage equals a level of a living wage for all Alberta workers.

Background

Alberta’s minimum wage is currently $12.20 per hour. While this is third highest in the country, it falls significantly below levels required to ensure a living wage for all workers. It is estimated that a living wage in Alberta ranges from about $13/hour in some smaller centres to $17.36 in Edmonton and $18.15 in Calgary (Living Wage Canada 2016).

The promised $15/hour minimum wage will still leave the majority of low wage workers in Alberta below a living wage. Further, the three-year phase-in period means the minimum wage will not address cost of living increases between now and October 2018. The Living Wage has been found to be an effective tool for reducing poverty and inequality.

Rationale

Workers with precarious citizenship are more likely than other Albertans to earn below a living wage, as they are frequently found in low income occupations in the retail, hospitality and caregiving sectors. These workers often find it difficult to make ends meet. A minimum wage that ensures all workers achieve a living wage will reduce poverty and increase financial independence of workers.

Issue 6: Appeal processes disadvantage migrant workers

Employers can sometimes avoid paying owed entitlements by delaying an appeal until employees with precarious immigration status are required to leave the country and, therefore, are unavailable to participate in the appeal.

Recommendation

All appeals should be via a common and expedited process. Officers (not employers or employees) should be responsible for defending the officer’s original order during the appeal process and employees should have the right to designate an advocate on their behalf.

Background

Sections 88 and 95 of the Employment Standards Code allow employees and employers (respectively) to appeal decisions of Employment Standards officers. Employers and employees have different appeal paths, with employee appeals being a paper-based process managed by a reviewing officer and the employer appeals being an in-person hearing in front of an umpire (typically a provincial court judge).

Employers of employees with precarious immigration status may delay the hearing of an appeal until an employee has returned to the employee’s home country. When the employee fails to appear to substantiate the employee’s original complaint, the employer’s appeal may be upheld.

Although s.99 of the Code allows for attendance through video conferences, such arrangements are uncommon and, for employees who have left the country, may be unavailable.

Rationale

Employees should not be denied owed entitlements simply because they are compelled to leave the country during the appeal period. The current system denies fair and due process to workers with precarious citizenship and arbitrarily disadvantages them in the process.

Issue 7: Personal leave

Alberta provides no job-protected, paid leave for workers to deal with family responsibilities, such as short-term illness and medical appointments.

Recommendation

Alberta employment legislation provides that all workers have 10 days of paid, job-protected family responsibility leave.

Background

Alberta does not provide workers with paid statutory leave to deal with short-term personal or family illness or other emergencies. Ontario provides employees who work for firms with at least 50 employees up to 10 days per year of paid personal emergency leave to cope with personal or family illness or medical emergencies. Employees are left to negotiate such leaves on an as-needed basis with employers.

Employees with precarious immigration status are less likely than other employees to be successful in such a negotiation because of concern about employer retaliation. While denying an employee sick leave might result in the employee filing a human rights complaint, such a remedy is delayed and (as noted above) likely unavailable for employees for whom termination means leaving the country.

Rationale

Employees sometimes require time away from work to address family responsibilities. At present, employees must negotiate such leaves with their employers, which result in uneven (and possibly no) access to such leaves.

Sources

Alberta. (1997). Employment Standards Regulation. Alberta Regulation 14/1997. Edmonton: Queen’s Printer.

Alberta. (2000). Employment Standards Code. RSA 2000, c.E-9. Edmonton: Queen’s Printer.

Alberta Jobs, Skills, Training and Labour. (2015). Annual Report 2014-15. Edmonton: Author. https://work.alberta.ca/documents/2014-15-JSTL-annual-report.pdf

Arthurs, Harrry. 2006. Fairness at Work: Federal Labour Standards for the 21st Century. Ottawa: Labour Standards Review Commission.

CBC. (2010, March 17). Temporary foreign workers treated poorly, NDP charges. http://www.cbc.ca/news/canada/edmonton/temporary-foreign-workers-treated-poorly-ndp-charges-1.920847

Ontario. 2004. Annual Report of the Auditor General. Toronto, Auditor General.

Thomas, Mark. 2009. Regulating Flexibility: The Political Economy of Employment Standards. Montreal: McGill-Queen’s University Press.

Weil, David 2012. “’Broken windows,’ vulnerable workers and the future of worker representation. The Forum: Labour in American Politics, 10 (1), Article 9.

Weil, David and Amanda Pyles. 2005. “Why Complain? Complaints, Compliance and the Problem of Enforcement in the US Workplace.” Comparative Labor Law & Policy Journal, 27 (1), 59-92.

Friday, April 21, 2017

Labour & Pop Culture: Streets of Philadelphia

This week’s installment of Labour & Pop Culture is “Streets of Philadelphia” by Bruce Springsteen. The song is from the soundtrack to the move Philadelphia, which was the first mainstream film to address AIDS.

The film centres on a gay attorney (Andrew Beckett, based on the real life story of Geoffrey Bower) who is fired from his firm, allegedly for incompetence. Really, he has been fired because of his disease. Beckett wins in the end, just in time to die.

I picked this song because next Friday (April 28th) is the National Day of Mourning for workers killed and injured at work. Ceremonies will be held in Edmonton in Borden Park at noon.

While we most often associate workplace injuries and fatalities with acute injury events (falls, crushes, explosions, etc.) or motor vehicle accidents, occupational disease is a significant and often unrecognized source of injury.

Workers with occupational diseases often have great difficulty gaining compensation of their injuries (diseases are complex, having long latency periods and murky causality). Many workers with occupational diseases also face discrimination, much like Tom Hanks’ character in Philadelphia.

Social isolation and depression often ensues. Springsteen captures the psychological effect of this well:
I was bruised and battered, I couldn't tell what I felt.
I was unrecognizable to myself.
And
I heard the voices of friends, vanished and gone


I was bruised and battered, I couldn't tell what I felt.
I was unrecognizable to myself.
Saw my reflection in a window and didn't know my own face.
Oh brother are you gonna leave me wastin' away
On the streets of Philadelphia.

I walked the avenue, 'til my legs felt like stone,
I heard the voices of friends, vanished and gone,
At night I could hear the blood in my veins,
It was just as black and whispering as the rain,
On the streets of Philadelphia.

Ain't no angel gonna greet me.
It's just you and I my friend.
And my clothes don't fit me no more,
I walked a thousand miles
Just to slip this skin.

Night has fallen, I'm lyin' awake,
I can feel myself fading away,
So receive me brother with your faithless kiss,
Or will we leave each other alone like this
On the streets of Philadelphia.

-- Bob Barnetson


Tuesday, April 18, 2017

Should Alberta protected concerted activity?

Today is the deadline for submissions regarding Alberta's Labour Relations Code review. Much of the chatter to date has focused on card-check certification, double-breasting, and first-contract arbitration.

I've appended below my submission. I chose to focus on the absence of concerted activity protections in Alberta's Labour Relations Code. The argument that I've advanced is that Alberta workers currently face profound impediments to exercising their associational rights and, give the direction of the Supreme Court's recent decisions on freedom of association, this creates an obligation on Alberta to statutorily protect concerted activity.

-- Bob Barnetson


Dear Mr. Sims,

Thank you for the opportunity to make a submission regarding changes to the Labour Relations Code.

I would like to propose remedying the lack protection in the Labour Relations Code for concerted activity. Presently, workers who exercise their Section 2(d) associational rights for any legitimate labour-relations purposes other than organizing or administering a trade union have no protection against or recourse in the case of employer retaliation.

By contrast, Section 7 of the US National Labour Relations Act (NLRA) protects persons engaged in “concerted activity” for the purpose of “mutual aid or protection”. Examples of such activity include the recent Fight for 15 campaigns, efforts to improve working conditions in non-unionized workplaces, collective whistleblowing activity, and work refusals that fall outside of the ambit of health and safety legislation.

This gap in Alberta’s Labour Relations Code fundamentally undermines workers’ ability to meaningfully exercise their associational rights. This, in turn, obligates Alberta to take affirmative action to facilitate the exercise of these rights.

In support of this assertion, I would point to the recent trend in Supreme Court of Canada decisions is to view associational rights in increasingly expansive terms. As recently noted by Ritu Khullar and Vanessa Cosco (2016), in Mounted Police, the Court found that “a key purpose of section 2(d) is to protect the ability of individuals to join with others to meet, on more equal terms, the power and strength of other groups or entities” (p. 30).

This view has been informed by Chief Justice Dickson’s 1987 dissent in Alberta Reference, wherein he asserted the
[87] Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association …has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict. … 
[88] What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.
Note that Chief Justice Dickson’s focus was on the relationship between marginalized individuals and the powerful (rather than simply the relationship between individuals and the state). The Court, in Mounted Police, adopted this focus when it stated:

[66] In summary, s. 2(d), viewed purposively, protects three classes of activities: … (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.

In Dunmore, the Court noted that the state can be obligated to take affirmative action in order to protect or facilitate the exercise of fundamental freedoms. In Fraser, the Court stated that circumstances where it is impossible to meaningfully exercise a freedom would be a violation of the Charter.

I would put to you that, in contemporary Alberta, non-unionized employees are in a situation where, if they exercise their associational rights, their employer can terminate or otherwise detrimentally manipulate (through scheduling changes and temporary layoffs) their employment.

This dynamic places non-unionized employees in a position where they cannot collectively and meaningfully exercise their associational rights except by forming or joining a union and certifying their workplace. Given that the unionization rate in Alberta is approximately 20% (the lowest in Canada), unionization is clearly not a realistic option for most workers.

Based on Dunmore, the absence of a meaningful way for workers to exercise their associational rights creates an obligation on Alberta to take affirmative action to facilitate this exercise. Introducing concerted activity protections to the Labour Relations Code would be an appropriate way to facilitate and protect the exercise of non-unionized workers’ associational rights.

Thank you for the opportunity to make this submission.

Dr. Bob Barnetson
Professor, Labour Relations
Athabasca University

Friday, April 14, 2017

Labour & Pop Culture: Earn Enough for Us

This week’s installment of Labour & Pop Culture is “Earn Enough for Us” by XTC. It was issued in 1986 and reflects the economic anxiety many Britons felt as a result of Margaret Thatcher’s austerity policies.

The singer worries about making enough money to make ends meet, particularly given that his partner is pregnant. The solution he proposes is to get an additional job while continuing to put up with a bad boss at his current one.

The song has just a touch a despair:
Just because we're on the bottom of the ladder
We shouldn't be sadder
Than others like us
Who have goals for the betterment of life
Here we see the entrenched class system where a better life feels beyond reach. There is no video for this song but you can listen to it here. In its place, I give you Today in HR: Succession Planning:



I've been praying all the week through
At home, at work and on the bus
I've been praying I can keep you
And to earn enough for us

I can take humiliation
And hurtful comments from the boss
I'm just praying by the weekend
I can earn enough for us

Found a house that won't repair itself
With it's windows cracking
And a roof held together with holes

Just because we're on the bottom of the ladder
We shouldn't be sadder
Than others like us
Who have goals for the betterment of life

Glad that you want to be my wife, but honest

I've been praying all the week through
At home at work and on the bus
I've been praying I can keep you
And to earn enough for us

So you're saying that we're going to be three
Now, a father's what I'll be
Don't get me wrong, I'm so proud
But the belt's already tight

I'll get another job at night, but honest
I can take humiliation
And hurtful comments from the boss
I'm just praying by the weekend

I can earn enough for us
Just because we're at the bottom of the ladder
We shouldn't be sadder
Than others like us

Who have goals for the betterment of life
Glad that you want to be my wife, but honest

I can take humiliation
And hurtful comments from the boss

I'm just praying by the weekend
I can earn enough for us
I can earn enough for us

--Bob Barnetson



Saturday, April 8, 2017

Alberta rushes profs towards strike-lockout

Last week, Alberta's Minister of Advanced Education (Marlin Schmidt, right) introduced changes to labour laws that affect faculty, grad students, and post-docs in Alberta’s colleges, universities, and technical institutes. Previously, labour relations were conducted under the ambit of the Post-Secondary Learning Act, which contains an incomplete set of labour laws.

Bill 7 mostly moves PSE labour relations under the ambit of the Labour Relations Code. This broadly mirrors the situation in other provinces and is a good policy change. The two provisions of Bill 7 that may warrant amendment have to do with transition periods.

Bill 7 gives academics the right to choose a different (or no) union—just like every other worker in Canada. But Bill 7 contains a five-year transition period (to 2022) during which workers cannot exercise these rights. A period of this duration makes little sense because it precludes academics who have legitimate concerns about the operation of their association from exercising any choice for five years.

The prospect of a union losing its bargaining-agent status is an important check-and-balance in unionized workplaces. It (along with the duty of fair representation) pressures unions to do their best to represent their memberships' interests. This is more than a theoretical argument. As I wrote a few weeks ago, there are a number of members of the U of A graduate students association who want to have the opportunity to select a different bargaining agent.

The other transition period issue in Bill 7 has to do with the shift from resolving bargaining impasse by arbitration to resolving it via strike-lockout. I see this change as a good one and in keeping with the Supreme Court’s SFL decision of 2015. My concerns are about the lack of a transition period.

Assuming Bill 7 is passed in its current form, all existing arbitrations will be allowed to continue but any bargaining impasse that occurs after April 6, 2017 will be resolved through strike-lockout. The absence of a transition period to strike-lockout (which was promised to faculty associations) leaves 7 (I think) faculty associations that are currently in bargaining in a bad position.

They are in a bad position because, when you bargain, you base your bargaining strategy on your BATNA (best alternative to a negotiated agreement). Under arbitration, the BATNA is basically the salary settlements at comparator institution. If the employer won’t come close to that, you have reached impasse and off you go to arbitration.

Under strike-lockout, the BATNA is whatever you think you can force out of the employer by withdrawing your labour. This might be more or less than comparator settlements. The ability of unions to withdraw their labour depends (in part) on their financial resources (e.g., strike fund) and membership committee to the bargaining position.

Having the dispute-resolution process change in the middle of bargaining is problematic because these unions have no strike funds and haven’t been building solidarity around their position. Maybe this is just tough beans but the associations took action based on assurances they had (or felt they had) from the government.

Consequently, an aggressive PSE employer can now impose a short lockout on the workers, bring them back, and then impose the employers’ last contract. (Procedurally it is a bit more complicated but that is the crux of the issue. Whether employers will be aggressive is an open question—my experience with my employer is that they would absolutely take advantage of this opening.)

Whether a union could effectively strike (which is the countermove to the 24-hour lockout) is also unclear. I suspect many faculty associations would struggle to do so. (To be fair, faculty association may be able to remedy the “strike-fund” problem by joining the CAUT strike fund (assuming the normal six-month waiting period is waived) or by securing a loan from CAUT or a bank.)

This means that the lack of a transition period is the government handing the employers a pretty big lever. I can’t really fathom why there was no transition period. The issue was raised in consultations and the government pretty clearly gave assurances to the unions that they wouldn’t get thrown to the wolves like this.

The most charitable explanation for this decision is the government decided that complying with the Supreme Court’s direction was the most important thing to do. The only support for this inference that I can find is Schmidt's brief statement in the House Thursday when he introduced the Bill:
Our government is committed to fair legislation that makes life better for hard-working Albertans, and we are committed to complying with the Supreme Court of Canada decision guaranteeing Canadian workers the right to strike. (p.552)
That explanation stands in contrast to the more widely accepted explanation: this is an effort by the government to help PSE employers grind down labour costs (which helps the government meet its fiscal targets and insulates it from criticism that it is coddling organized labour). Absent any government statement on this issue, I'm inclined towards the latter explanation.

The official response from faculty associations has been pretty professional (for example). The private responses I have heard from around the province are basically a very, very angry “what the fuck?” (often in those exact words). Many unions are feeling betrayed.

The answer to the “so what?” question starts in Calgary. The University of Calgary’s faculty association opposed these changes in the law. I think that was an error, but whatever. They are presently in bargaining with their employer. If, in the end, the U of C faculty feel they are forced to accept a bad deal (because they can’t handle a strike), that could translate into lost votes for the NDs in Calgary in 2019. The NDs need Calgary seats to form government again. And there are six other institutions in the same boat.

Now maybe the political calculus here is that (1) “that's two years from now”, (2) “who else are academics going to vote for—book burning so-cons?”, and (3) “we’re not going to win the rural seats where most of these colleges are anyhow”. If that is the calculation, I have to wonder if the political risk is really worth not providing a year or two of time to allow for an orderly transition? A year-long transition is no big deal--no one is going to file a constitutional challenge over it.

I’m feeling pretty fortunately my association isn’t caught out. But that was dumb luck. We have been active in putting together a strike fund, but we’re not ready. “Fortunately”, my employer completely pooched bargaining in February 2016 and, subsequently, stalled the arbitration process, so we’re still waiting to go to hearing. But we could easily have been in a bad spot.

To further complicate things, the seven institutions now bargaining under strike-lockout will need to negotiate essential services agreements with their employers (unless both sides decide to voluntarily refer impasse to interest arbitration—a case-by-case decision). Many small associations have limited labour-relations capacity and the situation has been made worse for colleges because of the disintegration of the Alberta Colleges-Institutes Faculty Association.

I wonder if a small amendment—reducing (or eliminating) the bar on raids and revocations and delaying the imposition of strike-lockout by a year or two—would be appropriate. This better protects the basic rights of workers to choose their bargaining agent while preventing employers from hammer the workers in this round of bargaining?

-- Bob Barnetson

Friday, April 7, 2017

Labour & Pop Culture: Dreamland

This week’s installment of Labour & Pop Culture looks at the Australian comedy “Dreamland” (also called “Utopia”) available on Netflix.

Dreamland follows the travails of the bureaucrats at the fictional Nation Building Authority as they try to develop infrastructure projects, cope with their own shortcomings, and manage political interference and fads.

If you have ever worked in the public sector, you’ll recognize most of the characters (“hey, that’s Mark!" or "Oh no, here comes the Minister's chief of staff!") and situations ("OMG, they're setting up a social media taskforce!" or "Oh no, the boss just came back from a conference with a great idea!”). These include:
  • Episode 3: The staff are directed to re-examine (one more time) a white-elephant rail project while undergoing a safety audit.
  • Episode: 4: A new and marginal employee manages to finagle a promotion by gaming the performance assessment process with meaningless lingo and filing a grievance.
  • Episode 12: The staff must put “meat on the bones” of a terrible, off-the-cuff policy idea while also coping with a Freedom of Information request.
  • Episode 15: Firing an incompetent employee takes a terrible, terrible turn plus a new coffee machine disrupts the office.
Episode 12


Episode 15


The crux of the humour is the effort by the two managers (Nat and Tony) to do their jobs while surrounded by easily distracted staffers and meddling political and communications operatives. Having survived a couple of years of government employment, this show nails the hard work and absurdity of it.

-- Bob Barnetson

Thursday, April 6, 2017

PSE labour relations: ACIFA explodes

A few weeks ago, I wrote about organizing efforts that are underway among University of Alberta Graduate students. These efforts reflect some of the instability that has emerged in (normally sleepy) academic labour relations in Alberta as the government prepares to extend the right to strike (and hopefully other labour rights) to academics--perhaps even this week!

There has been an interesting development in the college sector. The Alberta Colleges-Institutes Faculty Association is a provincial association that provided government and labour relations services to 15 faculty associations in Alberta. To the best of my recollection, the association dates back into the 1980s (but I may be wrong--that was a long time ago!) and basically acts as a labour central.

ACIFA has always had certain organizational tensions. Its member associations are quite diverse in size, scope, and ambitions. The associations include Alberta’s two huge technical institutes, two ambitious undergraduate universities, the art college, and a collection of other colleges (with a mix of university transfer, adult upgrading, and vocation programming, including agriculture). Add in a leadership cadre that, at times, has been uneven and you get some interesting politics.

It appears there was a recent kerfuffle in ACIFA. While the details are a bit sketchy, it appears that a number of member associations sought a change in ACIFA’s leadership. My source suggests a motion to this effect was thwarted procedurally (someone left a meeting to bring it below quorum).

The upshot is that the staff appear to have resigned, several (I hear half) of the member associations have indicated their intention to depart, and numerous executive members have resigned. I’m happy to correct that information if new facts emerge.

For the average college faculty member, this means little (their connection is with their local association). Provincially, the implications are more interesting:

1. Important labour law and funding reviews are afoot. How do associations that have left ACIFA influence government policy? And how does government get a coherent faculty resaponse from a splintered group?

2. Individual college faculty association have uneven levels of internal capacity to negotiate contracts and run grievances. How will low-capacity associations respond to the loss of key ACIFA staff members? If they can simply contract with former ACIFA staff privately for labour-relations services, an important (and perhaps the central) value of ACIFA membership disappears.

3. Speaking of staying, will the remaining ACIFA executive stay (and could they get re-elected) since the organization imploded under their leadership? And will other member associations drift away now that ACIFA has lost its staff expertise? Why would any association stay in a rump organization?

4. Individual faculty associations will soon face strike-lockout in collective bargaining. A sensible employer tactic would be to identify the weakest association(s) and try to force concessions to set a pattern. Absent a provincial association through which to share information and resources, small college faculty associations will be particularly vulnerable to this kind of pressure.

5(a). Vacuums tend to be filled. Will more former-ACIFA associations look to take out full membership in the national Canadian Association of University Teachers? Will some associations approach the provincial university body (the Confederation of Alberta Faculty Associations) about joining? And will CAFA want to let them in, given the traditionally different mandates of the research intensive universities and past squabbles?

5(b) Or, is this an opportunity for mainstream labour unions, such as the Alberta Union of Provincial Employees, to pick up some additional members? Whether that would be through raiding or some kind of affiliation might depend on what the new labour laws look like in PSE. Wall-to-wall coverage of support and academic employees at an institution would give AUPE significant bargaining power.]

All told, these are among the most interesting times I can recall in faculty labour politics in Alberta since the Klein cuts in 1994.

-- Bob Barnetson