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-M├ętis)
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

Tuesday, April 4, 2017

Options for labour law reform in Alberta

Alberta has announced a review of it Employment Standards Code and Labour Relations Code. There is a survey on Employment Standards issues available online which foreshadows a number of possible changes.

There is much less information available about possible changes to the Labour Relations Code, although the mandate letter sent to Andy Sims (who has been retained as a consultant) is an interesting read. It was last significantly amended in the late 1980s and creates structural barriers that impede workers from freely exercising their associational rights.

For example, Alberta’s unionization rate is approximately 22%. The national average is 30%. Interestingly, approximately 33% of Canadian workers who are not in a union say they would like to be and, overall, 52% of all Canadian workers would like to be or remain in a union.

Amendment of the Labour Relations Code will likely address three key issues: card-check certification, remedial certification, and first-contract arbitration. A fourth option to consider is enshrining protection for concerted activity in the Code.

1. Card-Check Certification

To unionize a workplace in Alberta, a union must demonstrate that at least 40% of the workers want to join the union and then, about 10 days later, win a certification vote held by the Labour Relations Board. The 10-day delay between application and vote gives employers the opportunity to pressurize workers to vote against the union.

An alternative to certification votes is the card-check model. Under the card-check model, if the union shows the Labour Relations Board evidence that a certain percentage of workers are union members (e.g., 65%), the Board then automatically certifies the union. This arrangement eliminates the opportunity for the employer to illegally interfere with workers’ right to choose. Unions that cannot demonstrate support that meets the card-check threshold can still achieve certification through a certification vote.

Up until 1977, all Canadian jurisdictions used card-check certification. Presently, only Quebec, Prince Edward Island, and Ontario’s construction sector do so. The evidence in Canada is clear: card-check certification provisions result in more certification drives by unions and more successful certification applications.

The most robust analysis is of BC’s move from card-check to mandatory votes in 1984, which saw a 50% reduction in certification drives and a 19% reduction is successful private-sector drives. A return to card check certification in 1993 saw the number of organizing drives increase, as well as a 19% increase is successful private-sector unionization drives.

The absence of any effect of these changes on public sector unionization (where employers are less likely to oppose unionization) suggests that requiring mandatory votes enabled employers who opposed unionization to thwart drives by giving the employer notice of the drive and time to act against it. Other studies have found similar card-check effects.

Returning Alberta to card-check certification will increase both the amount of organizing and the success rate of organizing drives. Employers often argue that mandatory secret-ballot votes are essential to democratic processes. Mandatory secret ballot votes are essential when one is electing a government, which has the power over one’s liberty and life. The argument that a vote is necessary when choosing a bargaining agent is less compelling, especially given that mandatory votes help employers interfere with a decision that properly belongs to the workers.

2. Remedial Certification

Currently, if an Alberta employer meddled in a union certification drive the Labour Relations Board has no effective remedy to issue. The best the Labour Board can do is conduct a second vote. But, if the employer has already poisoned the well, taking a second drink is unlikely to improve matters for the workers.

The Labour Relations Code could easily be amended to allow the Labour Relations Board to grant automatic certification in cases of significant employer interference in organizing campaigns. Such remedial certification power is necessary because up to 80% of employers overtly and actively resist union certification efforts. This employer interference profoundly impacts workers’ ability to exercise their associational rights free from undue employer influence.

For example, employers engaging in unfair labour practices – a subset of all forms of employer resistance to unionization – were found to reduce the chance of certification by 14%, to increase the likelihood of encountering serious bargaining difficulties by up to 35%, and to increase the likelihood of early decertification by up to 57%.

The public policy purpose of remedial certification is to eliminate the incentive for the employer to meddle in union organizing drives. The evidence from Ontario is that existence of the remedial certification provisions is often enough to dissuade employers from committing unfair labour practices.

3. First-Contract Arbitration

The government of Alberta could also enhance workers’ ability to exercise their associational rights by providing for first-contract arbitration (FCA). Under FCA, if collective bargaining reaches an impasse when the union and employer are negotiating a first collective agreement, either side can apply for resolution via arbitration, rather than being forced into a strike and/or lockout.

The need for FCA reflects that some employers will stonewall the union during the first round of bargaining in the hope of breaking the union. The purpose of collective bargaining is to reach a mutually agreeable collective agreement, not to allow the employer an opportunity to re-fight the certification campaign. FCA addresses this inappropriate behaviour by eliminating an employer’s incentive to stonewall.

First-contract arbitration is available in most Canadian jurisdictions. Experience (particularly in BC, Ontario and Quebec) suggests the availability of FCA reduces employers’ incentive to stonewall unions to such a degree that FCA is rarely invoked.

Concerted Activity

An omission in Canadian legislation is protection for concerted activity. Concerted activity, as set out in Section 7 of the US National Labour Relations Act (NLRA) provides protection to persons engaged in “concerted activity” for the purpose of “mutual aid or protection”.

Non-unionized workers have used such protections to pressure employers for higher wages (e.g., the recent Fight for 15) or better working conditions. Workers have also used concerted activity protections as a proxy for the right to refuse unsafe work (collectively) and to protect whistleblowing activity.

These NLRA protections are broader than those usually accorded to workers in Canadian labour laws. For example, the protections set out in Sections 21, 148 and 149 of Alberta’s Labour Relations Code are focused mostly on the formation of or participation in a union. Other associational activity is not protected.

Inserting concerted activity protections in Alberta's Code would provide an additional level of protection to workers exercising their freedom of association in ways other than simply organizing unions. Concerted activity protections may also go some distance towards ensuring that Alberta's labour laws are compliant with future interpretations (and extensions) of the freedom to association by the SCC.

Specifically, a number of scholars are questioning whether Canadian legislation in the Wagner tradition (which practically limits the exercise of associational right to workplaces where a majority of workers favour unionization) will continued to be viewed as constitutional since it precludes so many workers from meaningfully exercising their associational rights.

-- Bob Barnetson